Non Raceday Inquiry – NZTR v PA and MD Moroney 28 May 2009 decision

hearingid: 680baa4d20f1d66534b41dd3993e7a40

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non Raceday Inquiry - NZTR v PA and MD Moroney 28 May 2009 decision

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BEFORE A JUDICIAL COMMITTEE
AT AUCKLAND

IN THE MATTER of the New Zealand Rules of Racing
 
BETWEEN   NEW ZEALAND     
THOROUGHBRED RACING

           Informant

AND Paul Anthony MORONEY
Michael Denis MORONEY
Licensed Trainers  
  
           Defendant

DATE OF HEARING:  28 May 2009

VENUE:    Ellerslie Racecourse.

PRESENT: Mr J. W. McKenzie (Chief Racecourse Inspector) for New Zealand Thoroughbred Racing
Mr B. F. McKenzie (Racecourse Inspector)
Mr R. D. Scott (Racecourse Inspector)
Mr P. A. Moroney

JUDICIAL COMMITTEE:       J M Phelan (Chairman)
                                                  R M Seabrook

DATE OF DECISION:

 JUDICIAL COMMITTEE’S DECISION ON PENALTY AND COSTS
             

Information No 7695 has been filed by Chief Racecourse Inspector Mr J. W. McKenzie, and alleges a breach of Rule 1004(2) of the Rules of Racing by the defendant, Licensed Trainers Mr M. D. Moroney and Mr P. A. Moroney.  The charge reads as follows.

“I, the abovenamed informant allege that the abovenamed Defendant committed a breach of Rule 1004(2) IN THAT the horse Lido Shuffle was brought to the Racecourse at Avondale for the purpose of engaging in the Avondale Sunday Market 1600 race at the meeting of the Avondale Jockey Club on Friday the 24 April 2009, (in which said race such horse started) AND THAT such horse had had administered to it a prohibited substance, namely Indomethacin, capable of affecting its speed, stamina, courage or conduct in breach of Rule 1004(2) AND THAT you were the joint trainers of 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.”
Rule 1004(2) provides as follows.

“(2) When a horse which has been brought to any racecourse or similar racing facility for the purpose of engaging in any race or trial to which the Fifth Appendix hereto applies is found by any tribunal conducting an enquiry to have had administered to it or have had present in its metabolism any prohibited substance, capable of affecting its speed, stamina, courage or conduct, the Trainer and any other person  who in the opinion of any Tribunal conducting an inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfied the Tribunal that he had taken all proper precautions to prevent the administration or presence of such prohibited substance.”

Chief Racecourse Inspector Mr J. W. McKenzie represented New Zealand Thoroughbred Racing (”NZTR”) at this hearing, and he produced an authority to prosecute from the Chief Executive of NZTR.

At the start of the hearing Mr P. A. Moroney confirmed that this breach of the Rules was admitted, and he also agreed that he understood the charge and the Rule it was brought under.  The charge was therefore found to be proved in accordance with Rule 1115(1)(a).

BEFORE A JUDICIAL COMMITTEE
AT AUCKLAND

IN THE MATTER of the New Zealand Rules of Racing
 
BETWEEN   NEW ZEALAND     
THOROUGHBRED RACING

           Informant

AND Paul Anthony MORONEY
Michael Denis MORONEY
Licensed Trainers  
  
           Defendant

DATE OF HEARING:  28 May 2009

VENUE:    Ellerslie Racecourse.

PRESENT: Mr J. W. McKenzie (Chief Racecourse Inspector) for New Zealand Thoroughbred Racing
Mr B. F. McKenzie (Racecourse Inspector)
Mr R. D. Scott (Racecourse Inspector)
Mr P. A. Moroney

JUDICIAL COMMITTEE:       J M Phelan (Chairman)
                                                  R M Seabrook

DATE OF DECISION:

JUDICIAL COMMITTEE’S DECISION ON PENALTY AND COSTS
             

Information No 7695 has been filed by Chief Racecourse Inspector Mr J. W. McKenzie, and alleges a breach of Rule 1004(2) of the Rules of Racing by the defendant, Licensed Trainers Mr M. D. Moroney and Mr P. A. Moroney.  The charge reads as follows.

“I, the abovenamed informant allege that the abovenamed Defendant committed a breach of Rule 1004(2) IN THAT the horse Lido Shuffle was brought to the Racecourse at Avondale for the purpose of engaging in the Avondale Sunday Market 1600 race at the meeting of the Avondale Jockey Club on Friday the 24 April 2009, (in which said race such horse started) AND THAT such horse had had administered to it a prohibited substance, namely Indomethacin, capable of affecting its speed, stamina, courage or conduct in breach of Rule 1004(2) AND THAT you were the joint trainers of 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.”
Rule 1004(2) provides as follows.

“(2) When a horse which has been brought to any racecourse or similar racing facility for the purpose of engaging in any race or trial to which the Fifth Appendix hereto applies is found by any tribunal conducting an enquiry to have had administered to it or have had present in its metabolism any prohibited substance, capable of affecting its speed, stamina, courage or conduct, the Trainer and any other person  who in the opinion of any Tribunal conducting an inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfied the Tribunal that he had taken all proper precautions to prevent the administration or presence of such prohibited substance.”

Chief Racecourse Inspector Mr J. W. McKenzie represented New Zealand Thoroughbred Racing (”NZTR”) at this hearing, and he produced an authority to prosecute from the Chief Executive of NZTR.

At the start of the hearing Mr P. A. Moroney confirmed that this breach of the Rules was admitted, and he also agreed that he understood the charge and the Rule it was brought under.  The charge was therefore found to be proved in accordance with Rule 1115(1)(a).

Mr McKenzie presented and read a “Summary of Facts” relating to this charge.

Summary of Facts:

 “Lido Shuffle” was entered for and started in the Avondale Sunday Market 1600 race at the Avondale Jockey Club’s meeting held at Avondale on 24 April 2009.  The horse won this race.

Following the running of the race the horse was selected for a routine post race swab, and the sample was sent to the official racing laboratory (“NZRLS”) where it was received on 28 April 2009.  On the 6 May 2009 the NZRLS issued a written certificate advising that the sample was found on analysis to contain Indomethacin which is a prohibited substance.

On 8 May 2009 Mr P. A. Moroney was interviewed at the racing stables of the licensed trainers.  Mr M. D. Moroney was in Australia at that time, and had been at the time of this incident, and at the time of this hearing.  He was advised of the analytical result, and handed a copy of the NZRLS Certificate.  A full written statement was obtained from Mr P. A. Moroney.  He acknowledged that “Lido Shuffle” had been on a program of regular administration of “Cu Algesic” which contains the drug Indomethacin, and that he was well aware that it could not be administered within four days of racing.

An inspection of the feed room identified a partially used tube of “Cu Algesic”. There was also a “white board” used at the stable to record the feeding regime data for horses.  “Lido Shuffle” was listed on that board as one of a number of horses that were to be administered “Cu Algesic”.

 Mr Moroney explained that the stable had undergone considerable changes in staff recently, and in particular the loss of their stable foreman had meant that other less experienced staff had to take over the responsibility for preparation of feed for the horses.  It was not able to be established exactly how this drug had been administered, and the person who had mainly taken over the ex-foreman’s role said he thought he had stopped administering the remedy after Monday afternoon on the 20th April 2009.  It was thought that the administration might have been accidentally given by junior staff who had misread the white board.

Mr McKenzie said that it was to the Moroney’s credit that they accepted that it was their responsibility as the trainer of the horse, and that NZTR recognised from their enquiries that neither of the trainers was involved in the actual administration.  There was also total co-operation during this enquiry from Mr Paul Moroney and his staff.

Mr Moroney was asked if he had any comments to make in regard to the facts of this matter as set out by Mr McKenzie, and he said that he did not.
 
Submissions on Penalty:
 
Mr McKenzie presented and read submissions on penalty. 
 
It was accepted by NZTR that this positive swab was the result of an error made by an employee of the trainers.  Mr P. A. Moroney assisted the Racecourse Inspectors throughout the enquiry, and has acknowledged his vicarious responsibility for the actions of his employees.  Mr M. D. Moroney has also provided a letter in which he also accepts his vicarious responsibility.
 
It was also stated that positive swabs in racing attract adverse publicity, and that there are adverse effects on the owners and others involved.  There was also an effect on the general public.
 
It is also relevant that the Moroney’s have no previous charges in New Zealand for such a breach, and submitted that to be consistent with recent cases, a fine of $5000-00 would be an appropriate penalty in this case.
 
Mr P. A. Moroney said that this was an embarrassing situation to find themselves in, and that they deeply regretted what had happened.  At the time of the incident their foreman of 10 years standing had just left and the remaining staff were under considerable pressure at the time.  Mr Moroney also said that there had been no breaches of this Rule by the training partnership in the previous 27 years.  Mr M. D. Moroney’s letter, referred to above, also expressed these views.
 
 Decision as to Penalty:
 
 The penalty provisions in relation to a breach of Rule 1004(2) are contained in Rule 1004(3) which provides as follows.
 
 “(3) Every person who commits a breach of sub-Rule (2) or (2A) or (2B)
 or (2C) shall be liable to:
(a) Disqualification for a period not exceeding five years; or
(b) Suspension from holding or obtaining a licence, permit, certificate or registration for a period not exceeding five years.  If a licence, permit, certificate or registration is renewed during a term of suspension, then the suspension shall continue to apply to the renewed licence, permit, certificate or registration; and/or
(c) A fine not exceeding $15,000.”

It is of great concern to the racing industry that horses compete when they have prohibited substances in their systems.  It is serious because it is detrimental to the image of the industry and has the very real potential to affect the confidence of the public that supports racing by investing on the outcome of races. It is therefore in the best interests of the racing industry that Judicial Committees, in imposing penalties, ensure that the confidence of the betting public is maintained. In addition, there needs to be a “level playing field” on which all competitors can compete on a fair and equal footing, with no competitor having any unfair advantage over its rivals as the result of having a prohibited substance in its system.  These principles have been widely reported in previous cases.

Mr McKenzie also reminded us of the four principles of sentencing that should be followed in a case such as this, and we have taken these into account when determining an appropriate penalty. 

 In determining an appropriate penalty we have taken into account the following matters which are to the Moroney’s credit.

1. They have a clear record over a period of 27 years.
2. They admitted the breach at the earliest opportunity.
3. They co-operated fully in the enquiry.

We have not identified any aggravating features in this case.

Taking all the above matters into account we have decided that Mr P. A. Moroney and Mr M. D. Moroney will collectively be fined the sum of $5,000-00, which is in line with recent penalties imposed for similar breaches of this Rule.
 
 Request For a Ruling:
 
Information No. 41612 seeking a “Request for a Ruling” has been filed by Chief Racecourse Inspector Mr J. W. McKenzie.  The Information reads as follows.
 
 “I,  the abovenamed informant hereby apply to the judicial committee and seek a ruling on the following matters:  THAT the horse Lido Shuffle was brought to the Racecourse at Avondale and started in the Avondale Sunday Market 1600 race at the meeting of the Avondale Jockey Club on Friday the 24 April 2009 AND THAT such horse had had administered to it a prohibited substance, namely Indomethacin 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.”
 
 Rule 1004(1) provides as follows.
 
 “(1) Any horse which has been brought to any racecourse or similar racing facility and which is found by any tribunal conducting an inquiry to have had administered to it or have had present in its metabolism any prohibited substance, capable of affecting its speed, stamina, courage or conduct shall be disqualified for any race or trial to which the Fifth Appendix hereto applies in which it has started on that day.”
 
Mr McKenzie sought the disqualification of “Lido Shuffle” under the provisions
of this Rule.  Mr Moroney agreed that the disqualification of “Lido Shuffle” was mandatory.  Accordingly “Lido Shuffle” is disqualified from its first placing in the Avondale Sunday Market 1600 race at the meeting of the Avondale Jockey Club’s race meeting held on 24 April 2009.  The amended places are now as follows.

1st –  Catalina (10)
2nd –  Diplomatic (16)
3rd –  Supercharged (8)
4th –   Pineska (5)
5th –  Caballo (15)
6th –  Star Of Nero (12)

The stake payable in respect of “Lido Shuffle” is to be recovered by NZTR and is to be dealt with in accordance with Rule 1109.
 
Costs: 
 
Mr McKenzie advised that costs had been kept to a minimum in this case, and that costs of $300-00 were being sought.  Mr Moroney did not have anything relevant to say in relation to costs.  There will be an order that Mr P. A. Moroney and Mr M. D. Moroney pay costs of $300-00 to NZTR.
 
 
There will also be an order that costs be paid to the Judicial Control Authority. There were three non-race day matters heard today, and the costs for today’s hearings will be divided amongst them.  There will also be an order that Mr P. A. Moroney and Mr M. D. Moroney pay costs of $500-00 to the Judicial Control Authority.

J.M. Phelan    
Chairman      

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hearing_type: Old Hearing

Rules: 1004.2, 1004.3, 1115.1.a, 1004.1

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