Non Raceday Inquiry – NZTR v P and D Williams 14 April 2011 – Decision dated 6 May 2011

JUDICIAL COMMITTEE: Mr Murray McKechnie, Chairman and Mr Keith Hales
REGISTRAR: Mr Andrew Ray
PRESENT: Mr Mike Colson, Counsel for NZTR, Mr Cameron George, Chief Stipendiary Steward, Mr Peter & Mrs Dawn Williams, Licensed Trainers, Mr Alan Galbraith QC, Counsel for Mr & Mrs Williams, Dr Neil Houston, Veterinarian, Mr David Wells, Registered Stable Hand, Dr Ivan Bridge, Veterinarian, Dr Geoff Beresford, Veterinarian, Dr David Spencer, Veterinarian, Mr Barry Lichter, Journalist, Members of the public

 

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE 6TH DAY OF MAY 2011
This hearing raises interesting and significant issues concerning the swabbing of horses after the race in which they have taken part.

1. BACKGROUND
1.1 On Sunday the 30th January 2011 at the Auckland Racing Club meeting the Karaka Million race was the principal event on the programme. As the name of the race makes clear it carries a very significant stake. The race is restricted to 2yr olds that have been sold through the New Zealand Bloodstock Sales at Karaka. The filly Planet Rock was the favourite for the race. She finished third. The stake money for that placing was $75,000.00.
1.2 Mr & Mrs Williams were the trainers of Planet Rock. They train in partnership and hold a Class A licence. They are based at Riccarton. Their training partnership has had considerable success over many years.
1.3 Following the race the horses that had filled the first six (6) placings were swabbed. On the 10th February this year it was reported that the urine sample obtained from Planet Rock after the race demonstrated that the horse had present in its metabolism the anti-inflammatory agent ketoprofen. This agent is a prohibited substance under the rules.
1.4 The evidence called before the Committee established that on race day blood samples had been taken from all horses entered in the Karaka Million. No trace of ketoprofen was found in the blood sample taken from Planet Rock. The general manager of NZ Racing Laboratory Services is Dr Geoff Beresford. He holds a PHD in chemistry from Waikato University. In his evidence he explained that the absence of ketoprofen in the blood sample of Planet Rock was not an unusual circumstance. Nor, in his opinion, did that circumstance in any way contradict the positive finding in the urine sample. In a letter dated 9th March this year Dr Beresford advised the Christchurch based racing investigator Mr Robin Scott of the inquiries and tests which had been made. In the relevant part Dr Beresford’s letter is as follows:
This sample was taken from the horse which subsequently produced a post-race urine sample in which ketoprofen was detected. With regard to this positive finding, the data from the analysis of the blood sample was intensively re-examined for the presence of ketoprofen. No evidence of the presence of ketoprofen could be found in this data.
This is not an unusual outcome, nor does it in any way contradict the positive finding in the urine sample. The blood sample represents the large fluid volume of the horse’s blood system in which the drug is greatly diluted whereas in a urine sample the drug is concentrated prior to excretion. This may result in the drug being readily identified in a urine sample while a blood sample, taken at a similar time, may give a negative result because the level present is not detectable. Further, drugs are rapidly absorbed from the blood stream into tissues but then are slowly eliminated into the urine. There is therefore a longer ‘window of opportunity’ in which drugs may be detected in urine.

2. THE CHARGES
2.1 The Defendants (who are jointly and severally liable under the rules) have been charged under Rules 804(1) and 804(2) of the Rules of Racing.
(a) Rule 804(1) is as follows:
“A horse which has been brought to a racecourse or similar racing facility and which is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a prohibited substance of the type set out in any part of the Fourth Appendix to these Rules shall be, in addition to any other penalty which may be imposed, disqualified for any race or trial to which the Third Appendix hereto applies in which it has started on that day”.
(b) Rule 804(2) is as follows:
“When a horse which has been brought to a racecourse or similar racing facility for the purpose of engaging in a race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a prohibited substance of the type set out in paragraphs 1 to 4 of the Fourth Appendix to these Rules, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfies the Tribunal that he had taken all proper precautions to prevent the administration or presence of such prohibited substance”.

 

3. THE POSITION TAKEN BY MR & MRS WILLIAMS
3.1 The charges are denied. It is said for Mr & Mrs Williams:
(a) That there were a number of breaches of the swabbing procedures and in such circumstances NZTR cannot rely upon the laboratory certificate demonstrating the presence of ketoprofen in the urine of Planet Rock: and;
(b) That Mr & Mrs Williams are able to rely upon the defence that they took all proper precautions to prevent the administration of the prohibited substance.

4. THE NZTR SWABBING INSTRUCTIONS AND RULE 210(1)
4.1 The NZTR swabbing instructions were issued by the Chief Executive on the 11th February 2008. They are of critical importance. The relevant parts are:
(a) Under the subheading “preliminary procedure to taking samples there appears the following (it is necessary to set this out in full):
(i) The swabbing procedure shall be under the overall control of the Racecourse Inspector/Stipendiary Stewards.
The swab box facilities shall be kept clean at all times. No food, drink or smoking is allowed at this facility. It shall only be used for the swabbing of horses as directed by the Stipendiary Steward/Racecourse Inspector. It shall not be used between a race meeting/trial for other purposes. There shall be no exception. The swabbing procedures are to be undertaken by a veterinarian assisted by an attendant/s who shall be designated swabbing official/s. In an emergency the Racecourse Inspector and/or some other person appointed by him may take part.
When a horse is directed to be swabbed, such horse, together with the person in charge of it, shall be accompanied to the swabbing facility by a swabbing attendant who shall ensure the horse remains under their control and within their sight at all times until the horse enters the swabbing facility
The horse may be taken and hosed down.
Every precaution must be taken to ensure the horse does not eat or drink without the permission of the veterinarian or swabbing attendant, until the urine/blood sample has been taken.
The horse is then taken to the swabbing facility where the urine is collected in the swab box, which shall be clean with a suitable bed of straw or sawdust etc. The horse may be taken to an alternative location with the permissions of and accompanied by the veterinarian or swabbing attendant.
The owner, trainer, or in their absence the person in charge of the horse, or the duly appointed representative, shall be given the opportunity of accompanying the horse and being present during the taking of the sample.
Only authorised personnel are to be present in the swabbing facilities.
Every precaution is to be taken to prevent any contamination throughout the preparation and collection of the samples.
Disposable gloves must be work by veterinarians and appointed swabbing officials who are involved in the taking of a urine sample.

At the foot of the page which sets out the swabbing instructions there occurs the following -this is in bold print -
(ii) THE BOARD HAS INSTRUCTED THAT SWABBING CLINICS MUST BE KEPT SEPARATE FROM THE VETERINARY CLINIC AND MUST BE KEPT CLEAN AND USED EXCLUSIVELY FOR THE TAKING OF URINE/BLOOD SAMPLES FROM HORSES. THERE MUST BE NO EXCEPTION FROM THIS INSTRUCTION.
A copy of the NZTR swabbing instructions (1 page) is attached as an addendum to this decision.
4.2 Rule 210(1) is relevant. It is to this effect:
From any time at which withdrawals close for any race meeting and during any race meeting Stipendiary Stewards and Investigators have power where any horse has been entered for or has run in a race, to order:
(a) that any person take and maintain possession of any horse at any place for such period and under such conditions as the Stipendiary Stewards or Investigators specify; and/or
(b) that the horse be examined and/or tested and/or have any sample taken there from (including a sample of its urine and/or blood). Any such sample ordered to be taken shall as far as practicable be taken in accordance with the swabbing instructions or other direction (if any) from NZTR in force at the time of the order.

5. BURDEN OF PROOF
5.1 Mr Galbraith submitted that the Committee was required to be “comfortably satisfied” that the swabbing procedures could be relied upon. In support of that submission Mr Galbraith pointed to the decision of the International Court of Arbitration for Sport CAS 94/129 USA Shooting v UIT (23 May 1995). Further reference will be made to that decision of the Court of Arbitration later in this decision.
5.2 This Committee is a disciplinary body acting under the Rules of Racing and is required to determine whether there has been a breach of the relevant rules. In considering the standard of proof required the Committee is clear that in disciplinary proceedings before a domestic Tribunal the standard of proof, in the absence of any express statutory direction to the contrary, is the civil standard. It is the balance of probabilities. The leading authority is the Court of Appeal judgment in Z v The Complaints Assessment Committee [2008] 1 NZLR 65.
5.3 This issue was considered by a Non-race day Judicial Committee in NZTR v D 9th July 2008.

6 THE VIEW
6.1 The Committee proposed that it visit the site at the Ellerslie Racecourse where the events occurred. This was agreed to by all parties. The Committee walked through the stabling area and various of the witnesses who were later to give evidence explained where they had been and what had occurred.
6.2 The view taken by the Committee was most helpful to assist in an understanding of the events which occurred on the afternoon of Sunday 30th January this year.

7. FACTUAL BACKGROUND
7.1 Many of the relevant facts are not in dispute. Planet Rock was to race at Ellerslie on the 15th January. Some days earlier she had travelled from the South Island. Mr Williams told the Committee that upon arrival at the Stephen McKee stable at Ardmore her blood was a bit tied up. The filly was treated with a single dose of ketoprofen. Planet Rock raced at Ellerslie on the 15th January. She won the race and was swabbed. That swab was clear.
7.2 Throughout her visit to the North Island Planet Rock was stabled at the McKee property. On the 25th January the filly rolled into a fence and suffered lacerations to her off hind leg. Mr Williams contacted Dr Ivan Bridge. This veterinarian was responsible for treating Planet Rock throughout.
7.3 In his evidence Dr Bridge explained that on the afternoon of the 25th January he had been called to the McKee Stable. He was in the area and was able to get to the stable without delay. The filly presented with numerous abrasions to the back of the right hind leg and two skin flaps on the inside of the leg. The leg was swollen. It was apparent to Dr Bridge that the filly would require veterinary care if she was to have any prospect of racing on the 30th January. Antibiotic treatment was required. In a statement prepared for the Committee Dr Bridge set out what then occurred. The relevant passage is as follows:
“After assessing the situation and before treating her I rang Dr Beresford at the NZ Racing Laboratory to reinforce my understanding that serial doses of ketoprofen did not have a cumulative effect and therefore extend the withholding time, as in the case with serial doses of phenylbutazone. I explained that I wished to treat the filly that day and the next two, Dr Beresford repeated previous advice that the half life of ketoprofen was such that a daily dose would be eliminated as normal and that so long as the recognised withholding time was honoured it would not be an issue.
My records show she was treated with 10ml. (1gm) ketoprofen intravenously at the time, again at 8.00a.m. on the 26th January and again at 7.00a.m. on the 27th January”.
7.4 Mr Williams told the Committee that he knew Planet Rock was being treated with an anti- inflammatory drug. He was present when the drug was administered on each occasion. Mr Williams further explained that the filly missed no work during the week leading up to the race on the 30th January. He was asked by counsel for NZTR why he had not notified the Stewards that there was a problem. Mr Williams replied that by the Thursday he was satisfied that there was no problem and that the filly would start. He went on to say that if there had been any problem he would have insisted that the filly not take her place in the field. In answer to questions from the Committee Mr Williams said that when the horse was presented on race day there was no obvious sign of laceration on her off hind leg and she was walking freely. There was no suggestion in the evidence that the horse’s performance in the race was in any way compromised by the lacerations that had occurred on the 24th January.
7.5 The designated swabbing veterinarian on the 30th January 2011 was Dr Neil Houston. It happens that he and Dr Bridge are partners in the same veterinary practice known as Equine & Farm Limited.
7.6 Dr Houston’s responsibilities required him to supervise the swab clinic and to be available for any post-race treatment of horses. His colleague Dr Bridge was the veterinarian on course. Dr Houston explained that he was in the birdcage immediately following Race 5 and was to act as the swabbing steward for Planet Rock the third placed horse. He was aware that the horse was trained by Mr & Mrs Williams and had been stabled at the McKee property at Ardmore. The filly was led from the birdcage by Mr David Wells a stable hand employed by Stephen McKee. When Planet Rock arrived at the swabbing area the two swab boxes were both occupied. A decision was taken to move the filly into a horse latrine. Planet Rock was placed in that horse latrine box. She would not settle and Dr Houston instructed Mr Wells to walk her around. At about this time Dr Houston was approached by the licensed trainer Mr Jim Collett. He trained a horse called Phoenician Raider. This horse had just taken part in the Karaka Million and Mr Collett indicated that she had tied up quite badly following the race and was limping. Dr Houston made a decision that he should treat the filly Phoenician Raider without further delay. He instructed Mr Wells to continue walking Planet Rock around the stabling area. He then returned to the swab clinic and put down the collection pot which he had been carrying. He took off his gloves and went into the treatment room. He took a syringe and a needle. He took medication from a medicine cabinet. The drug with which the Collett horse was to be treated was Phenylbutazone. When that treatment had been completed Dr Houston returned to the treatment room, discarded the used syringe and needle, put on fresh surgical gloves and again uplifted the collection pot for the Planet Rock swab. He then left the treatment room and located Mr Wells walking Planet Rock. The filly was taken to one of the overnight boxes and voided urine without delay. Dr Houston then returned with Mr Wells to the swab clinic where the sample was processed.
7.7 Mr Wells related that he had led the filly back from the birdcage in the presence of Dr Houston. After being washed down she was taken to the swab clinic area. He observed Dr Houston pick up the collection pot and put on surgical gloves. The two swab boxes were both occupied and the decision was taken to have the filly go to one of the horse latrines. She wouldn’t settle there so she was taken out of the latrine and walked around the stabling area. Mr Wells related that while this was going on Dr Houston told him that he had to go and treat the filly Phoenician Raider. Mr Wells walked the horse around until Dr Houston came back. He related that nobody came near Planet Rock while he was walking her around and nothing was given to her while this took place. Mr Wells related that after a few minutes (perhaps four or five) Dr Houston returned and the swabbing procedure was completed. He observed Dr Houston carrying a collection pot and putting on surgical gloves as he approached the horse. When the swab had been obtained he went with Dr Houston to the swab clinic and the necessary paperwork was completed. Mr Wells confirmed that his signature appears upon the swab card.

8. PROBLEMS WITH THE SWABBING PROCEDURE
8.1 A decision had been taken to swab the first six (6) horses. The physical facilities available for this number of horses were not adequate. When Planet Rock reached the stables the two designated swabbing rooms were occupied. Those rooms, when inspected by the Committee, appeared to satisfy the requirement for cleanliness set out in the swabbing instructions. As earlier related Planet Rock was taken to a nearby latrine box. The box was inspected by the Committee when it took the view spoken of earlier. It was said that the box was in much the same state on raceday. There was straw on the floor and horse droppings to be seen.
8.2 After a short time in the latrine box Planet Rock was taken out and walked around by Mr Wells. Dr Houston told the Committee that the horse was in his sight throughout. The design of the building would not have permitted that to be literally true. There would have been short periods when Planet Rock was not within Dr Houston’s direct line of sight. Much more importantly however Dr Houston was called away to attend the horse Phoenician Raider. While he did that Planet Rock continued to be walked around by Mr Wells. As the preliminary procedure for taking samples makes clear the swabbing procedures are to be undertaken by a veterinarian assisted by attendants who shall be designated swabbing officials (emphasis added). Mr Wells was not a designated swabbing official. The swabbing instructions go on to say as follows:
“In an emergency the Racecourse Inspector and/or some other person appointed by him may take part”.
Dr Houston made a professional judgment that the filly Phoenician Raider required urgent treatment. There is no criticism of that decision. When Dr Houston went to the treatment room to obtain medication for Phoenician Raider Mr Wells had the care of Planet Rock. He had not been designated as a person who could take part in the swabbing procedure. It should be noted that the instructions speak of the Racecourse Inspector or some other person appointed by him taking part. Under the new integrity regime there are no Racecourse Inspectors. The Committee is however satisfied that if a Stipendiary Steward had been involved or had appointed some person to take part then there would have been compliance with the relevant instruction.
8.3 It was at the forefront of Mr Galbraith’s submissions that there had been a breach of the swabbing instructions when Dr Houston left the swabbing area and went to the veterinary clinic to obtain the medication to treat Phoenician Raider. Questions in cross-examination established that the ketoprofen substance is withdrawn from a phial by a syringe and that in doing that some of the substance ketoprofen may be left exposed. Further Mr Galbraith argued that after Dr Houston had completed the treatment of Phoenician Raider he returned to the veterinary clinic and handled the drug phials, the needle and syringe before returning to the swabbing procedure for Planet Rock. The evidence suggested that upon returning to Planet Rock one at least of the surgical gloves had not been placed upon Dr Houston’s hand.
8.4 In summary it is said that there have been breaches of the swabbing instructions in the following respects:
(a) a breach of the high cleanliness standard required.
(b) that the filly Planet Rock was not accompanied throughout by an authorised swabbing attendant.
(c) the treatment of another horse (Phoenician Raider) involving a return by Dr Houston to the veterinary clinic and the accessing of the medicine cabinet together with concerns about the handling of the swab pot after the treatment of Phoenician Raider may have resulted in contamination.

9. FURTHER DISCUSSION OF EVIDENCE
9.1 Reference should be made to further evidence that was given before the Committee. Mr David Wells said in his written brief of evidence that he was satisfied that the correct procedures were followed and I have no complaints in that regard. Mr Wells is not an authorised swabbing attendant and not qualified to express an opinion as to whether the swabbing instructions were properly complied with.
9.2 In answer to questions from Mr Galbraith Dr Houston acknowledged that there were more horses to swab than swab boxes. He acknowledged that the position was not ideal. He admitted that it was a very busy day and that he was under a fair bit of pressure. He said that he went to the latrine box with Planet Rock as first port of call. Further Dr Houston acknowledge that on raceday the condition of the swabbing area was his responsibility and that on the 30th January this year the environment was not ideal. He told the Committed that he had received no oversight or directions from NZTR other than the advice that six (6) horses were to be swabbed.
9.3 A veterinarian Dr David Spencer gave brief evidence. He was in control of the swabbing room. He confirmed that no unauthorised persons came into the room. Dr Spencer’s evidence is not directly relevant to the issue which the Committee must determine.
9.4 An explanation is required about the role of Dr Bridge. He is an experienced veterinarian having practised for some thirty six (36) years and is a former President of the New Zealand Equine Veterinary Association. He explained to the Committee that he had known Peter Williams for some ten (10) years as a client and a friend. He described Peter Williams as an old fashioned trainer. He confirmed the earlier ketoprofen treatment to Planet Rock.
9.5 Dr Bridge was asked about the recommended withholding period for ketoprofen. The New Zealand Equine Veterinary Association has published a guide for its members which is headed up “The period of detection list for NZEFA Veterinarians”. For ketoprofen the recommended withholding period is seventy two (72) hours. In the first paragraph of the guide there is a concluding sentence as follows:
“To provide a time buffer for individual variances veterinarians are advised to add 24 hours to the period of detection list when treating a horse prior to competition and members are referred to the other provisions below”.
As to the provisions below see the penultimate paragraph in the guide. It is in these terms:
“It is possible to have a horse return a positive result even after using the recommendations on the list and neither NZEFA, NZFA or any associated person or entity will have any liability or responsibility to any person relying on or using this list”.
The evidence established that Planet Rock raced 85 hours after the last administration of ketoprofen. As noted earlier there were three (3) administrations of the drug successively on the 25th, 26th & 27th January. Dr Bridge told the Committee that he was satisfied from his own knowledge and from his discussions with Dr Beresford that cumulative administrations of ketoprofen would not offend against the recommended withholding period. Dr Bridge was asked about the further 24 hour period recommended in the guide for NZEFA members. He replied that he saw it “as a comfort zone”.
9.6 A letter was put before the Committee dated the 11th April this year under the hand of Dr Bill Bishop currently President of the New Zealand Equine Veterinarians Association. That letter said in summary, “that equine veterinarians paid little attention to the recommended 24 hour additional period spoken of in their guide”. He gave it as his opinion that the unanimous procedure adopted by all experienced equine veterinary practitioners on the NZEFA executive was for the detection periods on the list to be used as a guide “with a small buffer time added”. The Committee finds it curious and unsatisfactory that the actual practice adopted by equine vets does not follow their own published guidelines. Attention is drawn to a number of recent cases where horses have started in races close to the recommended withholding period and then tested positive. Mr Colson referred to the recent decision of the Non-raceday Judicial Committee in NZTR v S 22nd November 2010. In that decision there was reference to the number of cases where positive swabs had been returned in circumstances where the withholding period was clearly an issue.
9.7 When asked about the circumstances at Ellerslie on the 30th January this year Dr Bridge acknowledged, in answer to questions, that the swabbing area was “not in pristine condition”. He said that the state of the swabbing area sometimes “slips off the radar”. He confirmed that the veterinary clinic contained a locked cupboard and that in the cupboard was the substance ketoprofen. Further that when the substance was withdrawn from a phial some residue might remain around the rubber top of that phial. Dr Bridge confirmed that there were other anti-inflammatory drugs in the cupboard.
9.8 Dr Bridge said that he had previously administered ketoprofen to horses over two (2) days leading up to a race but not previously over three (3) successive days. He said that he had told Mr Williams of the treatment plan. He did not tell Mr Williams of any risks because he did not consider there were any and he did not discuss with Mr Williams the recommended withholding period or the further 24 hour period recommended by the NZEFA guide.
9.9 With reference to the administration of ketoprofen to Planet Rock it was Mr Williams evidence that he relied entirely upon Dr Bridge. Mr Williams spoke of his long relationship with Dr Bridge and the senior position which the veterinarian held in the profession. Mr Williams told the Committee that he had not personally administered any medication to horses in his care for something like six (6) or seven (7) years. This, he said, followed an incident where a trainer had been held culpable for some administration of a prohibited substance. Mr Williams said in essence that he was satisfied that he and his wife as a training partnership could rely upon the advice of Dr Bridge. He pointed out, with some justification, that neither he nor his wife was qualified to question the recommended treatment regime which Dr Bridge chose to adopt.
9.10 With reference to the previous sub-paragraph the Committee has looked at the provisions of Rule 804(2) insofar as it relates to the requirement that trainers take “all proper precautions to prevent the administration or presence of such prohibited substance”. More will be said of this later but in the first instance it is the Committee’s view that the provision is primarily intended to ensure that trainers do not allow horses to be placed in a physical situation where prohibited substances may be administered. The Committee does not consider that this provision imposes an obligation upon trainers to seek verification of veterinary advice particularly when that advice is coming from a leading member of the profession.

10. POSITION OF NZTR
10.1 Mr Colson acknowledged that there was a measure of non-compliance with the swabbing instructions. He submitted that there was no opportunity for the Planet Rock sample to be contaminated as a result of Dr Houston going to treat the horse Phoenician Raider. He drew attention to the evidence of Mr Wells to the effect that nobody came near the horse and nothing was given to it while it was being walked around.
10.2 Mr Colson did not address the issue of Planet Rock being taken not to a swab box but to the latrine box. This was before Dr Houston was called away to treat the other filly. The Committee, as explained earlier, inspected the area and the latrine box is not a satisfactory place for a horse to be while it is awaiting a swab. Clearly the latrine box does not satisfy the cleanliness requirements which are repeatedly emphasised in the swabbing instructions. Those instructions require that the swab box facilities should be kept clean at all times and that they should be used for no purpose other than swabbing horses. It is said that there should be no exception to that provision. While the instructions go on to say that a horse may be taken to an alternative location if that is with the permission of and accompanied by the veterinarian or the swabbing attendant the latrine box is an inappropriate alternative. The Committee notes further that when the urine sample was finally provided by Planet Rock that did not take place in a swab box but rather in “an overnight box”. That box was shown to the Committee. It was somewhat cleaner than the latrine box. Its exact condition on the 30th January 2011 cannot now be known.
10.3 As to the possible contamination of the Planet Rock urine sample by reason of Dr Houston taking medicine from the veterinary clinic to treat Phoenician Raider and then returning to that clinic and resuming the swabbing procedures Mr Colson contended that contamination was unlikely. It should be emphasised that the relevant passage in the swabbing instructions quoted above makes clear that the swabbing clinics are to be kept separate from the veterinary clinic. That clearly has not happened on this occasion. Dr Hou

Penalty:

__________________________________ _______________________________
Murray McKechnie                Keith Hales
Chairman                             Committee Member