Non Raceday Inquiry/Review RIU v S Blackburn – Decision dated 28 September 2016 – Chair, Prof G Hall

hearingid: 716c5d65232fe39cfd1fbb2d71c5a7e3

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 29/09/2016

hearing_title: Non Raceday Inquiry/Review RIU v S Blackburn - Decision dated 28 September 2016 - Chair, Prof G Hall

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

BEFORE A JUDICIAL COMMITTEE

OF THE JCA

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association (Incorporated)

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND SUE BLACKBURN, Licensed Trainer

Respondent

BETWEEN

SUE BLACKBURN, Licensed Trainer

Applicant

AND RACING INTEGRITY UNIT (RIU)

Respondent

Information: A3374

Judicial Committee: Prof G Hall, Chairman

Mr P Williams, Member

DECISION OF JUDICIAL COMMITTEE

[1] At the meeting of the Palmerston North Greyhound Racing Club on 5 September last Ms Blackburn was alleged to have scratched CRUZ AWAY in Race 3, the AFFORDABLE PET ACCESSORIES C0 375 m, without a valid reason.

[2] Mr Whiterod, Chief Stipendiary Steward, has laid information A3374 alleging that Ms Blackburn has breached r 64.3. He seeks the imposition of a fine of $150.

[3] Rule 64.3 of the Greyhound Racing New Zealand Rules of Racing states:

If a Greyhound is withdrawn without valid reason after the Box Draw … the Owner or Trainer of the Greyhound shall be guilty of an Offence.

[4] Ms Blackburn does not admit the breach of r 64.3.

[5] Rule 91.3(e) is relevant in this context. It states:

If a Defendant pleads not guilty to an information for a Minor Infringement Offence, or does not accept the Penalty set out in the Sixth Schedule to these Rules, the Stewards shall forward the information to the Executive Officer of the Judicial Control Authority for hearing by a Judicial Committee.

[6] This is the procedure that has been adopted with respect to information A3374.

[7] Ms Blackburn was found by the Stewards on the day to be in breach of r 64.7 of the Greyhound Racing New Zealand Rules of Racing and the dog CRUZ AWAY was stood down for 28 days.

[8] Rule 64.7 states:

A Greyhound which has been included in the Box Draw for a Meeting … and is not presented to Race, shall be Suspended for 28 days unless permission has been granted by the Stewards for the Greyhound to be withdrawn, or the reason for the non attendance is submitted in writing to the Stewards of the day who may then reconsider the Penalty. An Owner or Trainer of a Greyhound may seek a review, by a Judicial Committee, of any decision under this Rule in accordance with Rule 91.20.

[9] Ms Blackburn seeks a review of the Stipendiary Stewards decision to suspend (stand down) CRUZ AWAY for 28 days.

[10] The two matters were heard at Palmerston North on 19 September.

[11] During a telephone conference with the parties on 12 September Ms Blackburn requested that this Committee grant a stay of the stand down. After hearing from Mr Whiterod, a stay of the stand down of CRUZ AWAY was granted until such time as we determined the review.

[12] For ease of reference we will refer to the RIU as the informant and Ms Blackburn as the respondent in this decision.

Informant’s case

[13] Mr Whiterod stated that on his arrival at the Manawatu Raceway for the Palmerston North GRC meeting on 5 September last, he spoke with the course curator, Mr John Doody, who advised him that following heavy rain, the track was slushy on top and that he thought that it would not be advisable to attempt to put machinery onto the track.

[14] Mr Doody, Stipendiary Steward Mr Mike Austin, and Mr Whiterod inspected the track. After a short walk, Mr Whiterod stated that while he agreed that to attempt any grooming would be unacceptable, he felt that while it was slushy on the top surface, it was of normal firmness beneath and that if it was the same for the balance of the track, he did not envisage a problem with racing that day, as in his opinion, it was safe for racing.

[15] Messrs Doody and Austin then walked the entire track and reported back to Mr Whiterod that it was the same right around and advised him that they too had no concerns with the track from a safety point of view. The Stewards elected not to allow trials before the first race to allow hopefully some drying of the surface.

[16] A short time later Mr Whiterod spoke with Club President, Mr Paul Freeman, and he agreed with the Stewards’ decision concerning the trials and agreed to return for another track inspection at a later time. This took place before the first race and there was agreement between the Stewards and the Club that the track was safe for racing. There was also agreement the fact that no grooming would take place was not going to place the meeting in jeopardy, as the Stewards in the past had been confronted with the very same scenario, with no problems being encountered.

[17] Kennelling was completed normally and no comments were made to the Stewards from participants concerning the track or the fact that no trials would be held prior to racing.

[18] On leaving the kennels, Mr Whiterod said he was approached by Ms Blackburn and questioned concerning the possibility of scratching her runner CRUZ AWAY if she was not happy with the track conditions, as the dog suffered from arthritis. Mr Whiterod said he advised her that the Stewards had assessed the track to be safe for racing and that she should contact him, if she wished, after racing started.

[19] Racing duly commenced with no problems and no comments from any of the participants and, soon after race 1, Ms Blackburn again approached Mr Whiterod and advised him that after talking to participants involved in race 1, she wished to scratch CRUZ AWAY from race 3 as the track was not fit for racing and her dog’s welfare was her priority.

[20] Mr Whiterod said he advised her that the track was safe and that her request was not considered to be a valid reason as the officiating veterinarian, Mr Charlie Boyce, had passed the dog fit to race that day. Ms Blackburn then advised Mr Whiterod that she would be scratching the dog anyway.

[21] Mr Whiterod said he requested that Ms Blackburn meet him at the kennels following race 2, which was about to start, and he and Mr Austin met her there following that race. Ms Blackburn and her training partner, her son, Court, were present when the Stewards arrived. Mr Whiterod spoke with Mr Boyce who was obviously aware of the request. Mr Boyce had not re-examined CRUZ AWAY and he told Mr Whiterod that he was happy with the dog’s fitness to race and he would not change his earlier examination assessment.

[22] Ms Blackburn then confirmed to Mr Whiterod her earlier comment that she was not running CRUZ AWAY and that she knew the dog better than anyone. She mentioned animal welfare issues.

[23] Mr Whiterod advised kennel staff and other parties that the dog was a late scratching and told Ms Blackburn that the dog would be stood down for 28 days under the Rules. Sometime later, he advised her that the Stewards would be considering whether to impose any other penalty and she replied that they would not be.

[24] A short time later, NZGRA Welfare Officer, Mr Kerr, who had been contacted by Ms Blackburn, contacted Mr Whiterod. Mr Whiterod advised him that the Stewards were carrying out their duties as RIU employees and acting under the GRNZ Rules. The Stewards then discussed the matter and under the Minor Infringement Table, the Stewards imposed a fine of $150 under r 64.3.

[25] Ms Blackburn had left the track before Mr Whiterod could present the charge sheet to her. Office staff advised Mr Whiterod that Mr Bill Hodgson would be picking up her papers on her behalf.

[26] Mr Whiterod telephoned Ms Blackburn the next day and discussed the fine but she said she would be pleading not guilty. Because Ms Blackburn had not signed the Minor Infringement Notice, Mr Whiterod wrote out a new charge sheet and presented that to the JCA office for a charge to be heard alleging that CRUZ AWAY had been scratched without valid reason.

[27] Mr Whiterod believed it was significant that there were 13 full fields carded to race on the day and that not one person made any comment to the Stewards or the Club personnel in relation to the track conditions until very late in the programme, when one trainer, Mr W (Bill) Hodgson made comment to both Mr Freeman and Mr Austin but not to Mr Whiterod, who was the Steward in charge on the day.

[28] Mr Whiterod said it was also important to note that on the day six of the top trainers from around the country were present or had runners engaged, and at no stage did they mention any concerns for their greyhounds’ welfare due to the track conditions. These trainers were identified as L Ahern represented by B Cole, M Roberts, A Turnwald represented and assisted by P Freeman, G Cleeve, K Walsh, J McInerney represented by S Stone, and W Hodgson.

[29] There were 103 greyhounds racing on the day and the Stewards did not have cause to send any dogs to the veterinarian post race.

[30] As to racing incidents on the day, Mr Whiterod stated one dog was observed by the veterinarian to come from the track with a minor toe abrasion requiring a seven-day stand down. In another instance, a kennel representative after watching Trackside TV at home, telephoned a staff member and requested a veterinarian check, which resulted in a ten-day stand down with gracilis muscle pain.
[31] As a comparison, at the previous Monday meeting, with similar numbers racing in similar classes, Mr Whiterod produced the Stewards’ raceday report which evidenced there was a total of eight stand downs due to injury following races. Similarly, the report for the meeting following 5 September, again with similar numbers racing in similar classes, recorded there was a total of four stand downs due to injury following races. He believed that confirmed that the track on 5 September was indeed safe for racing.

[32] Mr Whiterod said that when he spoke to Ms Blackburn after the meeting she had said she was prepared to take the 28-day stand down because of the welfare of the dog but was not aware of the fine. She told him she believed she had a valid reason to scratch CRUZ AWAY.

[33] Mr P Freeman gave evidence that he was President of the Palmerston North Club and had a handler’s licence. He had formerly had a trainer’s licence for 20 years.

[34] Mr Freeman described the track on the day as wet and heavy. It was slushy but he had no safety concerns, and he had seen it worse. The rain had stopped or at least eased prior to Race 1 and he thought the wind might get up. Although there was light rain during the meeting, he confirmed he did not receive any complaints about the state of the track.

Respondent’s case

[35] Ms Blackburn emphasised that the reason she had scratched CRUZ AWAY was her concern as to the dog’s welfare. She described the dog’s arthritic condition and the fact that he had received medication for this. She said she was not arguing that the track was unsafe for racing in general, just for CRUZ AWAY in light of his arthritis.

[36] Ms Blackburn said she told Mr Whiterod that she was concerned as to the deepness of the track and consequently for the safety of CRUZ AWAY. She had hoped that a tractor might go on the track and remove some water.

[37] Ms Blackburn confirmed she had talked to Mr Whiterod before race 3. Prior to this she had spoken to trainers who had dogs in race 1 and they had said the track was very deep. She told Mr Whiterod she did not want run CRUZ AWAY. Mr Whiterod spoke to the veterinarian and told her that there would be no late scratching.

[38] Ms Blackburn said she had been in the industry over 17 years and had only late scratched two dogs, CRUZ AWAY, and another which had hurt herself on race day. An X-ray later identified that dog had a stress fracture in a hock and there had been a 28-day stand down but no fine.

[39] Ms Blackburn alleged that a fine was unusual. She had not been able to find another trainer who had been fined when they had late scratched a dog. Ms Blackburn referred to Mr Clark who had late scratched 11 dogs and she did not believe he had been fined. We have read this case (Clark v RIU 21 March 2016). The 11 dogs were suspended pursuant to r 64.15 and stood down for 28 days. (This decision was quashed on review due to the RIU having acted under the wrong rule.) The circumstances are thus different from that before us. However, the scratching of Mr Clark’s dog YEBOAH on the previous day was for animal welfare reasons, and the Stewards granted permission for the greyhound to be withdrawn. There was thus no sanction imposed. That case too is different; the Stewards did not grant permission for CRUZ AWAY to be withdrawn.

[40] Ms Blackburn said she would have accepted a 28-day stand down but the fine had shocked her.

[41] With reference to CRUZ AWAY, she said she believed if he had raced he would have been sore. He was a middle distance dog and he was sprinting in order to determine if his arthritic wrists would hold up to racing.

[42] Ms Blackburn said she was surprised when the veterinarian had said to her he believed the dog would be better racing on that day on the deep track, as she believed with the holes on the track the dog would be in contact with the hard under-surface of the track. She acknowledged CRUZ AWAY might also have a problem with racing on hard tracks.

[43] Ms Blackburn emphasised that she had raced dogs and won races with dogs with arthritis. She said CRUZ AWAY had trialled on a track affected by rain but that track was not as deep as the one on this particular race day. She produced photos taken on 5 September, which showed water pooling in the dogs’ paw marks.

[44] Ms Blackburn stated that Mr Whiterod in a telephone conversation the next day with Ms Attwood, with respect to an unrelated matter, had described the raceday as a “shambles” and had said the track was “very messy but safe”. This conversation had been recorded accidentally and the words were very indistinct. Mr Whiterod had no objection to this being placed before this Committee, and said he could recall the conversation but not what he had said.

[45] Ms Blackburn called Mr Goldsack as a witness. He said Ms Blackburn had rung him on the day and asked him about the state of the track. He said until a dog went round in race 1 he could not comment. He saw this race on TV and could see the track was soft and was cutting up. It was not in good condition. He was aware CRUZ AWAY had a history of wrist problems due to arthritis and had noticed the dog was sore after trials on soft tracks when he had seen the dog in the wash down area. If CRUZ AWAY had raced, he believed the dog would have come off the track “not too flash”.

[46] Mr Goldsack said his dog had won race 3 and had had no problems. He had raced three dogs on the day and none had suffered any injury.

[47] Mr Goldsack stated that in his opinion Ms Blackburn had a valid reason to scratch CRUZ AWAY, as she would have been putting the dog at risk of injury because of its arthritis had he raced. He had not expected her to be fined because she was simply looking after the well being of the dog.

[48] When questioned by Mr Whiterod, Mr Goldsack said he had 12 years experience as a trainer and he agreed he had issues with the tightness of some of the tracks but not Palmerston North. He said he himself would not use painkillers on his dogs but some trainers did.

49] Mr Hodgson also gave evidence. He said he had 38 years experience in the industry. He had been President of the Wanganui Club and was on that track’s safety committee.

[50] Mr Hodgson said the Palmerston North track was bad on the day in question and there had been no machinery on it. He said he was not at the track for the first 3 races on the programme. He believed it was “marginal” and spoke to the Stipendiary Stewards about the state of the track after race 8.

[51] Mr Hodgson said he had not late scratched any of his dogs and they had not had problems. He was aware CRUZ AWAY had been sore after trialling on soft tracks. He believed it would have been difficult to say what to do on the day with respect to the dog, as there had been no machinery to cover the holes. However, he believed the respondent knew her dog better than anyone else.

[52] When questioned by Mr Whiterod, he said he had agreed with the Stewards that the track was safe on the day. They had only disagreed about track conditions on one occasion and that was with respect to Wanganui. He had never late scratched a dog because of track conditions.

[53] Ms Blackburn stated she was surprised the veterinarian had said CRUZ AWAY was “ok to race”, as he was aware of CRUZ AWAY’s condition. When questioned by this Committee, she accepted CRUZ AWAY was fit to race, but emphasised she knew there would be a problem with the dog after the race.

Summing up

[54] Mr Whiterod reaffirmed that the track was safe to race on and that the reason CRUZ AWAY was scratched was that it suffered from arthritis. The veterinarian was aware of the dog’s condition but had cleared that it was fit to race.

[55] Mr Whiterod noted that the Committee had granted a stay of the stand down to permit CRUZ AWAY to race. The dog had not raced, and he believed this was due to ongoing concerns over the welfare of the dog. He questioned whether the dog should be retired if his condition was as bad as the respondent had told this Committee.

[56] With respect to the respondent’s criticism of the track, he said this was not supported by the times on the day compared to the meeting the week before and that the week after, nor by the penetrometer readings.

[57] Mr Whiterod concluded by saying Ms Blackburn was aware when she nominated CRUZ AWAY that there was a doubt as to his fitness. The dog had been accepted and passed fit to race by the veterinarian. Ms Blackburn had made a commitment to race the dog and had scratched CRUZ AWAY in breach of the Rules.

[58] Ms Blackburn confirmed she believed she had a valid reason to scratch CRUZ AWAY. He had arthritis and it was very rare for a track to be in the condition Palmerston North was on the day. She disagreed with Mr Whiterod’s comments. She was not just taking “pot luck” with respect to track conditions.

[59] Ms Blackburn reiterated she had raced dogs with arthritis successfully in the past and that she was doing what she believed was best for CRUZ AWAY and, if confronted with the same circumstances, would scratch the dog again. She had expected a 28-day stand down but not a fine.

Decision

[60] It is evident that there had been a great deal of rain prior to the meeting at Palmerston North on 5 September and we are told there was misty rain throughout the course of the meeting. Conditions were such that the machinery was not put on the track and, as a consequence, the dogs’ paw marks were not covered and the holes extended down to the hard base of the track.

[61] The Stipendiary Stewards, the course curator and the President of the Club inspected the track. There were two inspections, with the full extent of the track being walked on the latter. The conclusion was that the track was heavy but safe for racing. Leading trainers were prepared to start their dogs and neither of the minor injuries suffered by two dogs on the day appeared to be due to the slushy nature of the track. The times were not markedly slower than the previous and subsequent meetings held on the track.

[62] We attach little weight to the accidentally recorded conversation between Mr Whiterod and Ms Attwood but note that at that time Mr Whiterod had confirmed his belief the track was safe for racing. We also note that Ms Blackburn did not press this matter.

[63] The respondent had nominated CRUZ AWAY for the meeting and this was to be his first race day start. CRUZ AWAY unfortunately suffers from arthritis in his wrists. He receives veterinarian treatment for this and it is clear that on occasions the dog is sore after racing. Ms Blackburn, Mr Goldsack and Mr Hodgson gave evidence to this effect.

[64] Ms Blackburn on the day decided that the risk to CRUZ AWAY was too great in that with the depth of the track and the holes extending to the hard under surface, he was likely to be sore after the race.

[65] Ms Blackburn sought permission from the Stipendiary Stewards to late scratch (withdraw) the dog after race 1. This was declined and Ms Blackburn was told to speak to the Stewards again before the dog was to race. In the meantime, the veterinarian, Mr Boyce, had confirmed that CRUZ AWAY was fit to race. The veterinarian was aware of the dog’s arthritis when he made this assessment.

[66] Ms Blackburn did not agree with the veterinarian and the Stipendiary Stewards, and she decided to withdraw CRUZ AWAY, due to her concerns as to the nature of the track.

[67] The issue squarely before us with respect to r 64.3 is whether the respondent had a valid reason to withdraw CRUZ AWAY from the race.

[68] We accept Ms Blackburn had concerns over the effect of the track on the welfare of CRUZ AWAY. However, the veterinarian, who was aware of the dog’s condition, passed the CRUZ AWAY as fit to race. Ms Blackburn accepts CRUZ AWAY was so fit, but was concerned as to the dog’s condition at the end of race, as she believed the track would aggravate the arthritis in the dog’s wrists and he would thus pull up sore. We have identified the evidence to the effect that the dog had previously been sore after trialling.

[69] The difficulty for the respondent is that the Rules do not permit her to pick and choose the track conditions on which she will or will not race CRUZ AWAY. We refrain from commenting on Mr Whiterod’s suggestion that the dog should be retired but we note Ms Blackburn also has concerns with the dog racing on hard tracks and that CRUZ AWAY was sore after trials on soft tracks, although those tracks were unlikely to be as loose as Palmerston North was on 5 September. We also note that Ms Blackburn has had success racing dogs suffering from arthritis, including a relative of CRUZ AWAY.

[70] We accept that Ms Blackburn acted through her concern as to the welfare of CRUZ AWAY. As she has reminded this Committee, a condition of her licence requires her to treat animal welfare as an absolute priority.

[71] However, as Mr Whiterod has responded, Ms Blackburn is also bound by the Rules.

[72] Ms Blackburn’s decision was to disregard the view of the veterinarian and to withdraw CRUZ AWAY. The track was safe to race on. The only injuries on the day were minor and do not appear to be due to the state of the track. Ms Blackburn did not allege that they were.

[73] The fact that racing on the slushy track would, in Ms Blackburn’s opinion, aggravate the dog’s arthritis, is in our view not a valid reason to withdraw CRUZ AWAY. We thus find Ms Blackburn is in breach of r 64.3.

[74] The Minor Infringement Offence penalty in the 6th schedule does not apply to this case: r 91.3(e) (see [5]).

[75] Mr Whiterod submits that a fine of $150, which equates to the penalty stipulated in the 6th schedule, is appropriate. Ms Blackburn states no penalty should be imposed.

[76] When we have regard to the unduly adverse weather on the day and the related track conditions, the fact that the respondent acted out of genuine concern for CRUZ AWAY’s welfare, and her excellent record with respect to this rule, we believe a lesser fine will hold Ms Blackburn accountable and will remind her of her obligations under the Rules.

[77] Ms Blackburn is fined the sum of $100.

[78] Ms Blackburn had not received permission from the Stewards to withdraw CRUZ AWAY. Rule 64.7 thus applies. Despite the somewhat unusual circumstances of this case, we believe the 28-day stand down imposed by the Stewards is appropriate. We thus confirm the 28-day stand down.

[79] The Rules are silent as to the effect of a stay where there has been an unsuccessful review of a stand down. The position where there has been an unsuccessful appeal is covered by r 97.12. We understand that CRUZ AWAY has not raced during the period of the stay. Whilst we would normally order that the period during which the stay has been in force not form part of the suspension period, in these circumstances we simply confirm the 28-day stand down, which we understand commenced after racing on 5 September.

Costs

[80] Mr Whiterod made no application for costs on behalf of the RIU. As the matter was heard on race day, this is understandable.

[81] There have been JCA costs in respect of the matter. The respondent’s actions on the day were far from frivolous. She acted, as we have said, out of concern for CRUZ AWAY. When regard is had to this fact and the small financial penalty we have imposed, we do not believe it is appropriate to make an award of costs against Ms Blackburn.

Dated at Dunedin this 28th day of September 2016.

Geoff Hall, Chairman

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: