Non Raceday Inquiry RIU v A N Edge and R G M Burrows – Penalty Decision dated 17 December 2019 – Chair, Mr R G McKenzie
ID: JCA18086
Decision:
BEFORE A JUDICIAL COMMITTEE
AT CHRISTCHURCH
-IN THE MATTER of the New Zealand - Rules of Harness - - Racing
IN THE MATTER of Information No. A7231
BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit
Informant
AND-ALAN NOEL EDGE of Weedons, Holder of Licence to Train
Respondent
AND-ROBERT GEORGE McKAY BURROWS of Rolleston, Licensed Stablehand
Judicial Committee:-Mr R G McKenzie (Chairman)
Ms O K Jarvis
Date of Hearing:-29 November 2019
Venue:-Addington Raceway, Christchurch
Present:-Mrs K R Williams, the Informant
Mr A N Edge, Respondent
Mr R G McK Burrows, Respondent
Date of Written Decision: 17 December 2019
PENALTY DECISION OF JUDICIAL COMMITTEE
Background
[1]-Information No. A7229, filed by Racing Investigator, Mrs Williams, alleges that, on 19 September 2019, the Respondent, Mr Edge, as the trainer of the standardbred ROYAL JESTER (2012 br g Jereme’s Jet – Lady Tala), which had been taken to the New Zealand Metropolitan Trotting Club for the purpose of engaging in Race 1, Horse Solutions & Glenwillow Feeds Mobile Pace, failed to present the said horse free of prohibited substances, namely bicarbonate or other alkali substance, as evidenced by a blood TCO2 level of 37.4 mmol/L, in breach of Rule 1004A (1), (2) & (3).
[2]-Information No. A7230, filed by Racing Investigator, Mrs Williams, alleges that, on 18 and 19 September 2019, the Respondent, Mr Burrows, administered a substance to ROYAL JESTER which was entered in Race 1, Horse Solutions & Glenwillow Feeds Mobile Pace, at the New Zealand Metropolitan Trotting Club on 19 September 2019, in breach of the One Clear Day Rule, rule 1004 (7).
The Rules
[3]--Rule 1004 provides as follows:
(1A) -A horse shall be presented for a race free of prohibited substances.
(2)-A horse shall be presented for a race with a total carbon dioxide (TCO2) level at or below the level of 36.0 millimoles per litre in plasma.
(3)-When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.
[4]-Rule 1004AA provides as follows:
(1)-For the purposes of this rule:
(b) -one clear day means the twenty-four-hour period before 12.01 am on the day the horse is to race; and
(c)-to administer includes:
(i)-to cause to be administered to, or ingested by, a horse;
(ii)-to permit to be administered to, or ingested by, a horse;
(iii)-to attempt to administer or be ingested by a horse; and
(iv)-to attempt to cause or permit to be administered to, or ingested by, a horse.
(2)-No person shall administer to a horse entered in a race on the day of racing and one clear day before the horse is to race . . . any substance by:
(b)-injection, hypodermic needle, or oral syringe;
(e)-by any similar method.
(5)-Where an administration under sub-rule (2) occurs both the person who administers the substance and the trainer of the horse commit a breach of the rules and are each liable to the sanctions set out in rule 1004 (7).
[5]-Rule 1004 provides:
(7)-Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
(a)-a fine not exceeding $20,000.00; and/or
(b)-be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.
Case for the Informant
[6]-Mrs Williams produced the following Agreed Summary of Facts:
1.-The facts are as follows: ROYAL JESTER is a 7-year-old brown gelding trained by Mr Alan Noel Edge. ROYAL JESTER is owned by Mr B Ryan, G Frew and A Edge. ROYAL JESTER has had 85 race starts for five wins and 21 placings as at 20 November 2019.
2.-ROYAL JESTER was correctly entered and presented by trainer Mr Edge to race in Race 1, Horse Solutions & Glenwillow Feeds Mobile Pace, at the New Zealand Metropolitan Trotting Club on 19th September 2019. Race 1 was an Amateur Drivers’ race and the horse was driven by Mr Edge. ROYAL JESTER finished in third place winning a stake of $560. This stake has not been paid out.
3.-ROYAL JESTER was selected as one of the nine horses to be pre-race TCO2 blood tested. ROYAL JESTER had a blood sample taken at 4.26pm by the Racecourse Veterinarian, Ms A Corser, in the presence of stablehand, Mr G J Sandford. The samples were recorded with the HRNZ Reference ID number: 50881. Mr Edge was advised shortly afterwards that blood samples had been taken from his horse. Mr Edge does not contest the taking of the samples.
4.-On the 25th September 2019, the New Zealand Racing Laboratory reported that the Blood Sample ID Number 50881 had returned an elevated Total Carbon Dioxide level with a recorded result of 37.4mmol/L. This is in excess of the level set by Harness Racing New Zealand.
5.-On 27th September 2019, RIU Investigator Mrs Kylie Williams and Stipendiary Steward Mr Shane Renault visited the training premises of Mr Edge. Mr Edge was advised of the elevated TCO2 result and interviewed. Mr Edge was given a copy of the Certificate of Analysis, TCO2 Authorisation Form and a copy of the Prohibited Substance Rule of the New Zealand Rules of Harness Racing.
6.-While Mr Edge was being interviewed stable employee, Robert George Burrows, came into the room and advised, after guessing that one of Mr Edge’s horses must have returned a positive swab, how it may have occurred.
7.-Mr Burrows was advised that the horse ROYAL JESTER had returned an elevated TCO2 level after racing at the New Zealand Metropolitan Trotting Club on 19th September 2019.
8.-Mr Burrows advised that he had given a mixture to prevent tying up to ROYAL JESTER by syringe three days, two days and one day out from racing and then in the horse’s feed on raceday.
9.-Mr Burrows had the mixture made up by his sister in America after discussions with her about horses tying up. 60gms of the mixture is mixed with another product. Mr Burrows had one of his wife’s horse’s bloods tested several months earlier after giving it the mixture to ensure that it wouldn’t elevate the horses TCO2 level. It was tested after only one dose, not tested after being given consecutive doses over a number of days.
10.-Components of the mixture were Potassium Citrate, Potassium Chloride, Magnesium, Salts, Electrolytes and Baking Soda. The horses in the stable were also given further Potassium Citrate and other additives as part of their daily feeds.
11.-Mr Burrows admitted he was not aware of the “One Clear Day Rule” but knew that you could not give anything to a horse on raceday by syringe which was why it was put in the horse’s feed.
12.-Mr Burrows advised that he had a discussion with Mr Edge when he got the product and that Mr Edge would have seen him giving it to the horses by syringe.
13.-Mr Edge is regularly away from the stables due to work commitments and had been away a lot of the time prior to the race meeting on the 19 September 2019 with the day to day running of the stable and feeding of the horses being left to the stablehands.
14.-Several samples were taken from the stabling area, including a blood sample from ROYAL JESTER, Sample ID: 50964 and sent to the Racing Laboratory for analysis. ROYAL JESTER was not receiving the preparation leading up to the taking of this blood sample.
15.-A sample of the “tie up” mixture was taken from Mr Burrows’ property and sent to the Racing Laboratory for testing.
16.-The New Zealand Racing Laboratory advised on 8 October 2019 that the Exhibit blood sample, Sample ID: 50964, taken from ROYAL JESTER, returned a level of 28.8mmol/L.
17.-Dr Andrew Grierson, Chief Veterinary Advisor to HRNZ confirmed on 17th October 2019 that there is “no reason to explain a racehorse being presented to the races with a TCO2 level of 37.4mmol/L besides that of an administration of an alkalising agent.”
18.-The New Zealand Racing Laboratory advised on 31st October that as the “tie up” mix contained sodium bicarbonate this is a potential alkalinising agent. They also advised that Potassium citrate could also be an alkalising agent.
19.-Mr Edge, as the trainer of ROYAL JESTER, has allowed a stable employee to give a product to reduce tie up which, in combination with feeding practices, has more than likely resulted in the elevated TCO2 result.
20.-Mr Edge has been training since 2015/16. Mr Edge has trained 9 winners in this time. Mr Edge has a licence to train and has 14 horses listed as in training. Mr Edge can be described as a “hobby trainer” with his income being sourced from a number of businesses outside the racing industry.
21.-Mr Burrows has held a stablehand’s licence for many years and has worked in a number of stables in the Canterbury area, and held a trials licence for four years from 2003.
Submissions of Alan Noel Edge
[7]-Mr Edge said, by way of background, that he was feeding potassium citrate to ROYAL JESTER for tie-up. He was away from the stables on the night before the race meeting and the day of the races. He had made up the feeds with potassium citrate and got his son to feed ROYAL JESTER.
[8]-Mr Burrows was aware that the horse tied up and thought that it might have needed something, Mr Edge said He gave the horse something on raceday for tying up, not realising that it had already been given potassium citrate. Mr Edge had no idea that Mr Burrows had given the horse anything.
[9]-Mr Edge admitted that he had failed to tell Mr Burrows that he had given the horse potassium citrate in the feed he had made up. He failed to be clear in his instructions to Mr Burrows. He has since taken steps to ensure something similar does not happen again. He accepted full responsibility.
[10]-Mr Edge said that he employs approximately 100 other staff in his businesses. Mr Burrows, he described, as a “faithful employee” who looks after his horses quite often on his own but, on this occasion, he forgot to tell Mr Burrows what he had done.
[11]-Mrs Williams explained that the “one clear day” rule, rule 1004AA (2), was introduced to avoid situations such as this. Had Mr Burrows been aware of it and not administered to ROYAL JESTER on raceday, then such a high TCO2 level would not have been returned. It is a relatively new rule.
Submissions of Robert George McKay Burrows
[12]-Mr Burrows said that the charge against Mr Edge would not have happened were it not for him. He was prepared to accept his penalty and put the matter behind him. He added that his actions were not deliberate and that Mr Edge was normally very careful.
Penalty Submissions of the Informant
[13]-Mrs Williams presented lengthy and detailed penalty submissions that had been prepared by Mr C J Lange, Counsel for the Racing Integrity Unit. These are summarised here.
[14]-Punishment is not the purpose of disciplinary proceedings. The decision of the Appeals Tribunal in RIU v Lawson (2019) marks a clear shift in imposing sanctions for a breach of the rules of racing and, correctly it is submitted, brings a disciplinary approach.
[15]-The purpose of disciplinary proceedings in a sport can be summarised as:
(a)-To enforce a high standard of propriety to maintain the high standards and good reputation of those involved in the sport; and
(b) -To protect the betting public and others involved in the sport from future breaches by the individual or others who might be likeminded to breach the rules.
[16]-The Prohibited Substance Rule imposes an absolute obligation on trainers to ensure horses are presented to race free of prohibited substances regardless of how the prohibited substance came to be present.
[17]-Applying the principles that are applicable to disciplinary proceedings and focussing on the maintenance of standards and not punishment, it is submitted that the Committee should consider:
(a)-The extent to which the trainer or stablehand has fallen below the expected standard;
(b)-The reason or cause the rule was breached; and
(c)-What steps have been taken to modify their practices to ensure, or at least minimise, the risk of the breach re-occurring.
[18]-The submissions then went on to address the cause of the breach:
1.--Mr Burrows had discussions with his sister in America about horses tying up. He had obtained a mixture from his sister. 60gms of the mixture is mixed with another product. Mr Burrows had one of his wife’s horse’s bloods tested several months earlier after giving it the mixture to ensure that it would not elevate the horses TCO2 level. It was tested after only one dose, not tested after being given consecutive doses over a number of days.
2.-Mr Burrows advised that he had given a mixture to ROYAL JESTER to prevent tying up to ROYAL JESTER by syringe three days, two days and one day out from racing and then in the horse’s feed on raceday.
3.-Components of the mixture were Potassium Citrate, Potassium Chloride, Magnesium, Salts, Electrolytes and Baking Soda. The horses in the stable were also given further Potassium Citrate and other additives as part of their daily feeds.
4.-The New Zealand Racing Laboratory advised on 31st October that, as the “tie up” mix contained sodium bicarbonate, this is a potential alkalinising agent. They also advised that Potassium Citrate could also be an alkalising agent.
5.-Dr Andrew Grierson, Chief Veterinary Advisor to HRNZ confirmed on 17th October 2019 that there is “no reason to explain a racehorse being presented to the races with a TCO2 level of 37.4mmol/L besides that of an administration of an alkalising agent.”
6.-Mr Burrows admitted he was not aware of the “One Clear Day Rule” but knew that you could not give anything to a horse on race day by syringe, which was why it was put in the horse’s feed.
7.-Mr Burrows has held a stablehand’s licence for many years and has worked in a number of stables in the Canterbury area and held a trials licence for four years from 2003.
8.-Mr Edge is regularly away from the stables due to work commitments and had been away a lot of the time prior to the race meeting on the 19 September 2019, with the day to day running of the stable and feeding of the horses being left to the stablehands.
9.-Mr Edge has been training since 2015/16. Mr Edge has trained 9 winners in this time. Mr Edge has a licence to train and has 14 horses listed as in training. Mr Edge can be described as a “hobby trainer” with his income being sourced from a number of businesses outside the racing industry. He was unaware that the tie-up mix was being provided to the horse.
10.-It is submitted the following factors can be identified as giving rise to the breach:
(a)-Professional advice should have been sought when introducing a new preparation that was not commercially manufactured for racing horses. Even though discussions may have occurred months earlier with his employer regarding a product being introduced into the feeding regime professional advice was not sought by either party. Trainers need to seek professional help in understanding how introducing an alkalising product into a feed regime may impact on levels that are present already in the feeds they feed.
(b)-A failure to be aware of the rules and the prohibition of administering a substance by syringe one clear day of racing;
(c)-A failure by the trainer to be aware of the practices being engaged by his stablehand and to keep proper supervision over the use of additives in feeds. Even though Mr Edge is a “hobby trainer” he is still required to train within the rules and ensure that any stable staff are aware of and comply with the rules at all times.
[19]-When considering those factors, it is acknowledged the Committee can also have regard to:
(a)-Mr Burrows took some steps to ascertain if the mixture would elevate TCO2 levels.
(b)-The RIU accepts there was no intent to elevate TCO2 levels.
(c) -Both Mr Edge and Mr Burrows were cooperative throughout the investigations and have admitted the breaches.
(d)-This is a first breach of the rules by Mr Edge and Mr Burrows relating to prohibited substances and practices.
[20]-It is anticipated both Mr Edge and Mr Burrows will provide information to the Committee that they have modified their practices to prevent a reoccurrence of the rules being breached. Providing that is the case the RIU submits the appropriate sanction is a financial sanction.
[21]-Under the former approach to sanctions which used the criminal justice approach fines for a breach of the prohibited substance rule had range from $2500.00 to $12,000.00.
[22]-Again, under the former approach to sanctions fines ranging from $750.00 to $1,000.00 had been imposed for administering a substance on race-day.
[23]-The RIU submits for a breach of the prohibited substance rule a financial sanction in the range of $750 – $1,000 is appropriate.
[24]-The RIU further submits that a similar level of fine is appropriate for a breach of the one-clear day rule when the breach gives rise to a positive swab. Although Mr Burrows had taken some steps to ascertain if the substance would elevate TCO2 levels this needs to be balanced against that he was unaware of the rules.
[25]-ROYAL JESTER is required to be disqualified under rule 1004AA(6).
[26]-The RIU are not seeking any costs.
Reasons for Penalty
[27]-It is quite clear to the Committee how the elevated TCO2 was returned in the blood sample taken from ROYAL JESTER prior to its race at Addington on 19 September 2019, if the statements of Mr Edge, trainer, and Mr Burrows, the stablehand, are to be believed. We found their statements to be perfectly credible and that explanation has been accepted by the Racing Integrity Unit.
[28]-The elevated level has come about as a result of a lack of communication between the trainer and his staff member, the consequence being that the horse has received doses of potassium citrate in the days leading up to the race, another in the feed made up by Mr Edge and again from Mr Burrows on raceday.
[29]-Mr Edge has admitted a breach of rule1004 (1A), (2) and (3) and Mr Burrows a breach of rule 1004AA (1) – the “one clear day” rule.
[30] -The threshold prescribed in the rule is 36.0 mml/L – the reading in this case was 37.4. We note the statement of Dr Andrew Grierson (para [6].17 above).
[31]-We get little assistance from the suggested starting point for a first offence in the Penalty Guide – one-year disqualification and a fine of up to $10,000. The Committee believes that a penalty of that magnitude must surely be reserved for the very worst case of “milkshaking” by adding sodium bicarbonate in an unprotected form or administered via stomach tube to deliberately delay the onset of fatigue brought about by lactic acid accumulation. The Committee’s view is tacitly supported by the penalty recommendations of the Informant.
[32]-Most of the penalties in previous TCO2 cases are historic and predate the Penalty Guide provisions. The Informant has submitted that a fine is the appropriate penalty provided the Respondents have provided information to us that they have “modified their practices” to prevent any recurrence of what happened or anything similar. We are satisfied that they have done so – Mr Edge assured us that he has given careful instructions to his staff and has posted notices prominently in the stables area. Mr Edge produced a laminated copy of such notice.
[33]-The Informant’s penalty submissions highlight a number of aggravating and mitigating factors. Firstly, professional advice should have been sought before introducing a new preparation that was not commercially manufactured and how introducing an alkalising product into feed may impact on levels already present in feeds being given. Secondly, a failure (in the case of Mr Burrows) to be aware of the “one clear day” rule. Thirdly, and significantly, a failure by Mr Edge to be aware of the practices adopted by his stablehand and to keep proper supervision over the use of additives in feeds. These are all aggravating factors.
[34]-Mitigating factors were identified as being that Mr Burrows took some steps to ascertain if the mixture would elevate TCO2 levels, there was no intent to elevate TCO2 levels, both Respondents were cooperative throughout the investigations and, finally, it was a first breach of the relevant rules by either of the Respondents. We were impressed by their genuine remorse shown at the hearing.
[35]-An interesting aspect of this case is that each Respondent has accepted blame for the elevated TCO2 level. What is clear to the Committee is that each played a part, possibly not more one than the other. It was combination of the acts or omissions of both Respondents coming together. However, at the end of the day, we believe it is the trainer’s responsibility to ensure, by whatever means necessary, that the horse is presented to race free of prohibited substances. We deem Mr Edge to be the more culpable for this reason. Mr Edge has acquiesced in a situation in his training stables that has allowed this to happen.
[36]-The Committee notes that penalties for recent TCO2 breaches (since 2012) have ranged from $1,200 to $4,500, other than for a couple of cases in which the circumstances were exceptional and the penalties handed down were more severe. We are guided by the penalties of between $1,200 and $4,500 but have also had regard to the increase in penalty in the Penalty Guide since those penalties and the new approach to penalties by racing Judicial Tribunals on a disciplinary basis, with punishment no longer being a matter to be taken into consideration.
[37]-As far as the breach by Mr Burrows of the “one-day rule” is concerned, we can find no previous case under that rule to assist us with penalty. The rule has been introduced only recently and the charge against Mr Burrows appears to be the first heard by a Judicial Committee. The penalty submission of the Informant was for a fine in the range of $750 to $1,000.
[38]-The Committee has considered the circumstances of the breach by Mr Burrows and the mitigating factors of his cooperation with the investigation, his admission of the breach and his previous good record. We also give Mr Burrows credit for admitting his part in the breach, without which admission the cause of the elevated TCO2 level may never have been identified.
[39]-As far as the breach by Mr Edge of rule 1104 (2) and 1004 (3) is concerned, we have already mentioned the aggravating factors. Mitigating factors are his cooperation with the investigation, his admission of the breach (he was prepared to accept full responsibility to the exclusion of Mr Burrows) and his previous good record. In addition, we have taken into consideration that he has modified his stable practices to ensure, as far as possible, that there is no recurrence.
[40]-At the same time as taking the aggravating and mitigating factors into account, and the change in approach to sentencing, we cannot ignore previous penalties in arriving at penalty in this case.
Penalty
[41]-Mr Edge is fined the sum of $4,000.
[42]-Mr Burrows is fined the sum of $800.
Disqualification of Horse
[43]-Pursuant to rule 1004D (1), ROYAL JESTER is disqualified from Race 1, Horse Solution & Glenwillow Feeds Mobile Pace, at the meeting of NZ Metropolitan TC held at Addington on 19 September 2109. Consequent upon the disqualification, the amended result for the race is as follows:
1st 7 The Governor
2nd 13 Frank The Tank
3rd 4 Pat Campbell
4th 14 Barkley
5th 3 Opawa Mach
It is ordered that stakes be paid in accordance with that amended result.
Costs
[44]-There is no order as to costs.
R G McKENZIE
Chair
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 18/12/2019
Publish Date: 18/12/2019
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
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decisiondate: 18/12/2019
hearing_title: Non Raceday Inquiry RIU v A N Edge and R G M Burrows - Penalty Decision dated 17 December 2019 - Chair, Mr R G McKenzie
charge:
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE A JUDICIAL COMMITTEE
AT CHRISTCHURCH
-IN THE MATTER of the New Zealand - Rules of Harness - - Racing
IN THE MATTER of Information No. A7231
BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit
Informant
AND-ALAN NOEL EDGE of Weedons, Holder of Licence to Train
Respondent
AND-ROBERT GEORGE McKAY BURROWS of Rolleston, Licensed Stablehand
Judicial Committee:-Mr R G McKenzie (Chairman)
Ms O K Jarvis
Date of Hearing:-29 November 2019
Venue:-Addington Raceway, Christchurch
Present:-Mrs K R Williams, the Informant
Mr A N Edge, Respondent
Mr R G McK Burrows, Respondent
Date of Written Decision: 17 December 2019
PENALTY DECISION OF JUDICIAL COMMITTEE
Background
[1]-Information No. A7229, filed by Racing Investigator, Mrs Williams, alleges that, on 19 September 2019, the Respondent, Mr Edge, as the trainer of the standardbred ROYAL JESTER (2012 br g Jereme’s Jet – Lady Tala), which had been taken to the New Zealand Metropolitan Trotting Club for the purpose of engaging in Race 1, Horse Solutions & Glenwillow Feeds Mobile Pace, failed to present the said horse free of prohibited substances, namely bicarbonate or other alkali substance, as evidenced by a blood TCO2 level of 37.4 mmol/L, in breach of Rule 1004A (1), (2) & (3).
[2]-Information No. A7230, filed by Racing Investigator, Mrs Williams, alleges that, on 18 and 19 September 2019, the Respondent, Mr Burrows, administered a substance to ROYAL JESTER which was entered in Race 1, Horse Solutions & Glenwillow Feeds Mobile Pace, at the New Zealand Metropolitan Trotting Club on 19 September 2019, in breach of the One Clear Day Rule, rule 1004 (7).
The Rules
[3]--Rule 1004 provides as follows:
(1A) -A horse shall be presented for a race free of prohibited substances.
(2)-A horse shall be presented for a race with a total carbon dioxide (TCO2) level at or below the level of 36.0 millimoles per litre in plasma.
(3)-When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.
[4]-Rule 1004AA provides as follows:
(1)-For the purposes of this rule:
(b) -one clear day means the twenty-four-hour period before 12.01 am on the day the horse is to race; and
(c)-to administer includes:
(i)-to cause to be administered to, or ingested by, a horse;
(ii)-to permit to be administered to, or ingested by, a horse;
(iii)-to attempt to administer or be ingested by a horse; and
(iv)-to attempt to cause or permit to be administered to, or ingested by, a horse.
(2)-No person shall administer to a horse entered in a race on the day of racing and one clear day before the horse is to race . . . any substance by:
(b)-injection, hypodermic needle, or oral syringe;
(e)-by any similar method.
(5)-Where an administration under sub-rule (2) occurs both the person who administers the substance and the trainer of the horse commit a breach of the rules and are each liable to the sanctions set out in rule 1004 (7).
[5]-Rule 1004 provides:
(7)-Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
(a)-a fine not exceeding $20,000.00; and/or
(b)-be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.
Case for the Informant
[6]-Mrs Williams produced the following Agreed Summary of Facts:
1.-The facts are as follows: ROYAL JESTER is a 7-year-old brown gelding trained by Mr Alan Noel Edge. ROYAL JESTER is owned by Mr B Ryan, G Frew and A Edge. ROYAL JESTER has had 85 race starts for five wins and 21 placings as at 20 November 2019.
2.-ROYAL JESTER was correctly entered and presented by trainer Mr Edge to race in Race 1, Horse Solutions & Glenwillow Feeds Mobile Pace, at the New Zealand Metropolitan Trotting Club on 19th September 2019. Race 1 was an Amateur Drivers’ race and the horse was driven by Mr Edge. ROYAL JESTER finished in third place winning a stake of $560. This stake has not been paid out.
3.-ROYAL JESTER was selected as one of the nine horses to be pre-race TCO2 blood tested. ROYAL JESTER had a blood sample taken at 4.26pm by the Racecourse Veterinarian, Ms A Corser, in the presence of stablehand, Mr G J Sandford. The samples were recorded with the HRNZ Reference ID number: 50881. Mr Edge was advised shortly afterwards that blood samples had been taken from his horse. Mr Edge does not contest the taking of the samples.
4.-On the 25th September 2019, the New Zealand Racing Laboratory reported that the Blood Sample ID Number 50881 had returned an elevated Total Carbon Dioxide level with a recorded result of 37.4mmol/L. This is in excess of the level set by Harness Racing New Zealand.
5.-On 27th September 2019, RIU Investigator Mrs Kylie Williams and Stipendiary Steward Mr Shane Renault visited the training premises of Mr Edge. Mr Edge was advised of the elevated TCO2 result and interviewed. Mr Edge was given a copy of the Certificate of Analysis, TCO2 Authorisation Form and a copy of the Prohibited Substance Rule of the New Zealand Rules of Harness Racing.
6.-While Mr Edge was being interviewed stable employee, Robert George Burrows, came into the room and advised, after guessing that one of Mr Edge’s horses must have returned a positive swab, how it may have occurred.
7.-Mr Burrows was advised that the horse ROYAL JESTER had returned an elevated TCO2 level after racing at the New Zealand Metropolitan Trotting Club on 19th September 2019.
8.-Mr Burrows advised that he had given a mixture to prevent tying up to ROYAL JESTER by syringe three days, two days and one day out from racing and then in the horse’s feed on raceday.
9.-Mr Burrows had the mixture made up by his sister in America after discussions with her about horses tying up. 60gms of the mixture is mixed with another product. Mr Burrows had one of his wife’s horse’s bloods tested several months earlier after giving it the mixture to ensure that it wouldn’t elevate the horses TCO2 level. It was tested after only one dose, not tested after being given consecutive doses over a number of days.
10.-Components of the mixture were Potassium Citrate, Potassium Chloride, Magnesium, Salts, Electrolytes and Baking Soda. The horses in the stable were also given further Potassium Citrate and other additives as part of their daily feeds.
11.-Mr Burrows admitted he was not aware of the “One Clear Day Rule” but knew that you could not give anything to a horse on raceday by syringe which was why it was put in the horse’s feed.
12.-Mr Burrows advised that he had a discussion with Mr Edge when he got the product and that Mr Edge would have seen him giving it to the horses by syringe.
13.-Mr Edge is regularly away from the stables due to work commitments and had been away a lot of the time prior to the race meeting on the 19 September 2019 with the day to day running of the stable and feeding of the horses being left to the stablehands.
14.-Several samples were taken from the stabling area, including a blood sample from ROYAL JESTER, Sample ID: 50964 and sent to the Racing Laboratory for analysis. ROYAL JESTER was not receiving the preparation leading up to the taking of this blood sample.
15.-A sample of the “tie up” mixture was taken from Mr Burrows’ property and sent to the Racing Laboratory for testing.
16.-The New Zealand Racing Laboratory advised on 8 October 2019 that the Exhibit blood sample, Sample ID: 50964, taken from ROYAL JESTER, returned a level of 28.8mmol/L.
17.-Dr Andrew Grierson, Chief Veterinary Advisor to HRNZ confirmed on 17th October 2019 that there is “no reason to explain a racehorse being presented to the races with a TCO2 level of 37.4mmol/L besides that of an administration of an alkalising agent.”
18.-The New Zealand Racing Laboratory advised on 31st October that as the “tie up” mix contained sodium bicarbonate this is a potential alkalinising agent. They also advised that Potassium citrate could also be an alkalising agent.
19.-Mr Edge, as the trainer of ROYAL JESTER, has allowed a stable employee to give a product to reduce tie up which, in combination with feeding practices, has more than likely resulted in the elevated TCO2 result.
20.-Mr Edge has been training since 2015/16. Mr Edge has trained 9 winners in this time. Mr Edge has a licence to train and has 14 horses listed as in training. Mr Edge can be described as a “hobby trainer” with his income being sourced from a number of businesses outside the racing industry.
21.-Mr Burrows has held a stablehand’s licence for many years and has worked in a number of stables in the Canterbury area, and held a trials licence for four years from 2003.
Submissions of Alan Noel Edge
[7]-Mr Edge said, by way of background, that he was feeding potassium citrate to ROYAL JESTER for tie-up. He was away from the stables on the night before the race meeting and the day of the races. He had made up the feeds with potassium citrate and got his son to feed ROYAL JESTER.
[8]-Mr Burrows was aware that the horse tied up and thought that it might have needed something, Mr Edge said He gave the horse something on raceday for tying up, not realising that it had already been given potassium citrate. Mr Edge had no idea that Mr Burrows had given the horse anything.
[9]-Mr Edge admitted that he had failed to tell Mr Burrows that he had given the horse potassium citrate in the feed he had made up. He failed to be clear in his instructions to Mr Burrows. He has since taken steps to ensure something similar does not happen again. He accepted full responsibility.
[10]-Mr Edge said that he employs approximately 100 other staff in his businesses. Mr Burrows, he described, as a “faithful employee” who looks after his horses quite often on his own but, on this occasion, he forgot to tell Mr Burrows what he had done.
[11]-Mrs Williams explained that the “one clear day” rule, rule 1004AA (2), was introduced to avoid situations such as this. Had Mr Burrows been aware of it and not administered to ROYAL JESTER on raceday, then such a high TCO2 level would not have been returned. It is a relatively new rule.
Submissions of Robert George McKay Burrows
[12]-Mr Burrows said that the charge against Mr Edge would not have happened were it not for him. He was prepared to accept his penalty and put the matter behind him. He added that his actions were not deliberate and that Mr Edge was normally very careful.
Penalty Submissions of the Informant
[13]-Mrs Williams presented lengthy and detailed penalty submissions that had been prepared by Mr C J Lange, Counsel for the Racing Integrity Unit. These are summarised here.
[14]-Punishment is not the purpose of disciplinary proceedings. The decision of the Appeals Tribunal in RIU v Lawson (2019) marks a clear shift in imposing sanctions for a breach of the rules of racing and, correctly it is submitted, brings a disciplinary approach.
[15]-The purpose of disciplinary proceedings in a sport can be summarised as:
(a)-To enforce a high standard of propriety to maintain the high standards and good reputation of those involved in the sport; and
(b) -To protect the betting public and others involved in the sport from future breaches by the individual or others who might be likeminded to breach the rules.
[16]-The Prohibited Substance Rule imposes an absolute obligation on trainers to ensure horses are presented to race free of prohibited substances regardless of how the prohibited substance came to be present.
[17]-Applying the principles that are applicable to disciplinary proceedings and focussing on the maintenance of standards and not punishment, it is submitted that the Committee should consider:
(a)-The extent to which the trainer or stablehand has fallen below the expected standard;
(b)-The reason or cause the rule was breached; and
(c)-What steps have been taken to modify their practices to ensure, or at least minimise, the risk of the breach re-occurring.
[18]-The submissions then went on to address the cause of the breach:
1.--Mr Burrows had discussions with his sister in America about horses tying up. He had obtained a mixture from his sister. 60gms of the mixture is mixed with another product. Mr Burrows had one of his wife’s horse’s bloods tested several months earlier after giving it the mixture to ensure that it would not elevate the horses TCO2 level. It was tested after only one dose, not tested after being given consecutive doses over a number of days.
2.-Mr Burrows advised that he had given a mixture to ROYAL JESTER to prevent tying up to ROYAL JESTER by syringe three days, two days and one day out from racing and then in the horse’s feed on raceday.
3.-Components of the mixture were Potassium Citrate, Potassium Chloride, Magnesium, Salts, Electrolytes and Baking Soda. The horses in the stable were also given further Potassium Citrate and other additives as part of their daily feeds.
4.-The New Zealand Racing Laboratory advised on 31st October that, as the “tie up” mix contained sodium bicarbonate, this is a potential alkalinising agent. They also advised that Potassium Citrate could also be an alkalising agent.
5.-Dr Andrew Grierson, Chief Veterinary Advisor to HRNZ confirmed on 17th October 2019 that there is “no reason to explain a racehorse being presented to the races with a TCO2 level of 37.4mmol/L besides that of an administration of an alkalising agent.”
6.-Mr Burrows admitted he was not aware of the “One Clear Day Rule” but knew that you could not give anything to a horse on race day by syringe, which was why it was put in the horse’s feed.
7.-Mr Burrows has held a stablehand’s licence for many years and has worked in a number of stables in the Canterbury area and held a trials licence for four years from 2003.
8.-Mr Edge is regularly away from the stables due to work commitments and had been away a lot of the time prior to the race meeting on the 19 September 2019, with the day to day running of the stable and feeding of the horses being left to the stablehands.
9.-Mr Edge has been training since 2015/16. Mr Edge has trained 9 winners in this time. Mr Edge has a licence to train and has 14 horses listed as in training. Mr Edge can be described as a “hobby trainer” with his income being sourced from a number of businesses outside the racing industry. He was unaware that the tie-up mix was being provided to the horse.
10.-It is submitted the following factors can be identified as giving rise to the breach:
(a)-Professional advice should have been sought when introducing a new preparation that was not commercially manufactured for racing horses. Even though discussions may have occurred months earlier with his employer regarding a product being introduced into the feeding regime professional advice was not sought by either party. Trainers need to seek professional help in understanding how introducing an alkalising product into a feed regime may impact on levels that are present already in the feeds they feed.
(b)-A failure to be aware of the rules and the prohibition of administering a substance by syringe one clear day of racing;
(c)-A failure by the trainer to be aware of the practices being engaged by his stablehand and to keep proper supervision over the use of additives in feeds. Even though Mr Edge is a “hobby trainer” he is still required to train within the rules and ensure that any stable staff are aware of and comply with the rules at all times.
[19]-When considering those factors, it is acknowledged the Committee can also have regard to:
(a)-Mr Burrows took some steps to ascertain if the mixture would elevate TCO2 levels.
(b)-The RIU accepts there was no intent to elevate TCO2 levels.
(c) -Both Mr Edge and Mr Burrows were cooperative throughout the investigations and have admitted the breaches.
(d)-This is a first breach of the rules by Mr Edge and Mr Burrows relating to prohibited substances and practices.
[20]-It is anticipated both Mr Edge and Mr Burrows will provide information to the Committee that they have modified their practices to prevent a reoccurrence of the rules being breached. Providing that is the case the RIU submits the appropriate sanction is a financial sanction.
[21]-Under the former approach to sanctions which used the criminal justice approach fines for a breach of the prohibited substance rule had range from $2500.00 to $12,000.00.
[22]-Again, under the former approach to sanctions fines ranging from $750.00 to $1,000.00 had been imposed for administering a substance on race-day.
[23]-The RIU submits for a breach of the prohibited substance rule a financial sanction in the range of $750 – $1,000 is appropriate.
[24]-The RIU further submits that a similar level of fine is appropriate for a breach of the one-clear day rule when the breach gives rise to a positive swab. Although Mr Burrows had taken some steps to ascertain if the substance would elevate TCO2 levels this needs to be balanced against that he was unaware of the rules.
[25]-ROYAL JESTER is required to be disqualified under rule 1004AA(6).
[26]-The RIU are not seeking any costs.
Reasons for Penalty
[27]-It is quite clear to the Committee how the elevated TCO2 was returned in the blood sample taken from ROYAL JESTER prior to its race at Addington on 19 September 2019, if the statements of Mr Edge, trainer, and Mr Burrows, the stablehand, are to be believed. We found their statements to be perfectly credible and that explanation has been accepted by the Racing Integrity Unit.
[28]-The elevated level has come about as a result of a lack of communication between the trainer and his staff member, the consequence being that the horse has received doses of potassium citrate in the days leading up to the race, another in the feed made up by Mr Edge and again from Mr Burrows on raceday.
[29]-Mr Edge has admitted a breach of rule1004 (1A), (2) and (3) and Mr Burrows a breach of rule 1004AA (1) – the “one clear day” rule.
[30] -The threshold prescribed in the rule is 36.0 mml/L – the reading in this case was 37.4. We note the statement of Dr Andrew Grierson (para [6].17 above).
[31]-We get little assistance from the suggested starting point for a first offence in the Penalty Guide – one-year disqualification and a fine of up to $10,000. The Committee believes that a penalty of that magnitude must surely be reserved for the very worst case of “milkshaking” by adding sodium bicarbonate in an unprotected form or administered via stomach tube to deliberately delay the onset of fatigue brought about by lactic acid accumulation. The Committee’s view is tacitly supported by the penalty recommendations of the Informant.
[32]-Most of the penalties in previous TCO2 cases are historic and predate the Penalty Guide provisions. The Informant has submitted that a fine is the appropriate penalty provided the Respondents have provided information to us that they have “modified their practices” to prevent any recurrence of what happened or anything similar. We are satisfied that they have done so – Mr Edge assured us that he has given careful instructions to his staff and has posted notices prominently in the stables area. Mr Edge produced a laminated copy of such notice.
[33]-The Informant’s penalty submissions highlight a number of aggravating and mitigating factors. Firstly, professional advice should have been sought before introducing a new preparation that was not commercially manufactured and how introducing an alkalising product into feed may impact on levels already present in feeds being given. Secondly, a failure (in the case of Mr Burrows) to be aware of the “one clear day” rule. Thirdly, and significantly, a failure by Mr Edge to be aware of the practices adopted by his stablehand and to keep proper supervision over the use of additives in feeds. These are all aggravating factors.
[34]-Mitigating factors were identified as being that Mr Burrows took some steps to ascertain if the mixture would elevate TCO2 levels, there was no intent to elevate TCO2 levels, both Respondents were cooperative throughout the investigations and, finally, it was a first breach of the relevant rules by either of the Respondents. We were impressed by their genuine remorse shown at the hearing.
[35]-An interesting aspect of this case is that each Respondent has accepted blame for the elevated TCO2 level. What is clear to the Committee is that each played a part, possibly not more one than the other. It was combination of the acts or omissions of both Respondents coming together. However, at the end of the day, we believe it is the trainer’s responsibility to ensure, by whatever means necessary, that the horse is presented to race free of prohibited substances. We deem Mr Edge to be the more culpable for this reason. Mr Edge has acquiesced in a situation in his training stables that has allowed this to happen.
[36]-The Committee notes that penalties for recent TCO2 breaches (since 2012) have ranged from $1,200 to $4,500, other than for a couple of cases in which the circumstances were exceptional and the penalties handed down were more severe. We are guided by the penalties of between $1,200 and $4,500 but have also had regard to the increase in penalty in the Penalty Guide since those penalties and the new approach to penalties by racing Judicial Tribunals on a disciplinary basis, with punishment no longer being a matter to be taken into consideration.
[37]-As far as the breach by Mr Burrows of the “one-day rule” is concerned, we can find no previous case under that rule to assist us with penalty. The rule has been introduced only recently and the charge against Mr Burrows appears to be the first heard by a Judicial Committee. The penalty submission of the Informant was for a fine in the range of $750 to $1,000.
[38]-The Committee has considered the circumstances of the breach by Mr Burrows and the mitigating factors of his cooperation with the investigation, his admission of the breach and his previous good record. We also give Mr Burrows credit for admitting his part in the breach, without which admission the cause of the elevated TCO2 level may never have been identified.
[39]-As far as the breach by Mr Edge of rule 1104 (2) and 1004 (3) is concerned, we have already mentioned the aggravating factors. Mitigating factors are his cooperation with the investigation, his admission of the breach (he was prepared to accept full responsibility to the exclusion of Mr Burrows) and his previous good record. In addition, we have taken into consideration that he has modified his stable practices to ensure, as far as possible, that there is no recurrence.
[40]-At the same time as taking the aggravating and mitigating factors into account, and the change in approach to sentencing, we cannot ignore previous penalties in arriving at penalty in this case.
Penalty
[41]-Mr Edge is fined the sum of $4,000.
[42]-Mr Burrows is fined the sum of $800.
Disqualification of Horse
[43]-Pursuant to rule 1004D (1), ROYAL JESTER is disqualified from Race 1, Horse Solution & Glenwillow Feeds Mobile Pace, at the meeting of NZ Metropolitan TC held at Addington on 19 September 2109. Consequent upon the disqualification, the amended result for the race is as follows:
1st 7 The Governor
2nd 13 Frank The Tank
3rd 4 Pat Campbell
4th 14 Barkley
5th 3 Opawa Mach
It is ordered that stakes be paid in accordance with that amended result.
Costs
[44]-There is no order as to costs.
R G McKENZIE
Chair
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