Non Raceday Inquiry RIU v AJ Arnold 30 September 2011 – Reserved Decision dated 10 October 2011
ID: JCA16831
Decision:
IN THE MATTER of the New Zealand
Rules of Harness
Racing
AND
IN THE MATTER of Information No. 63983
BETWEEN BARRY ALEXANDER KITTO, Racing Investigator for the Racing Integrity Unit
Informant
AND EDWARD WILLIAM ARNOLD, of Leeston, Holder of Licence to Train
Defendant
DATE OF HEARING: Friday, 30 September 2011
VENUE: Judicial Room, Addington Raceway, Christchurch
JUDICIAL COMMITTEE: R G McKenzie (Chairman) - J M Phelan (Committee Member)
PRESENT: Mr B A Kitto (Informant), Mr E W Arnold (Defendant), Mr S P Renault, Registrar
DATE OF DECISION: 10 October 2011
RESERVED DECISION OF JUDICIAL COMMITTEE
1.0 The Charges
1.1 Information No. 63983 alleges as follows:
THAT on the 1st day of May 2011, at the Timaru Harness Racing Club’s meeting held at Phar Lap Raceway, Timaru, during the day of racing in respect of the horses entered in races and prior to the horses racing, in respect of the horse MANTRAP race 3 and the horse COBBER CLEARY in race 7, you did administer by injection a substance, namely, “Boost” in breach of Rule 1004 (6) and you and the horses are liable to the penalty or penalties which may be imposed in accordance with Rules 1003 (1) (a), (b) and (c) and 1003 (2) (a) and (b) (i), (ii) and (iii) of the New Zealand Rules of Harness Racing.
1.2 It was established that the information incorrectly shows the horse as “MANTRAP”. The correct name of that horse is “MANTORP”. The information was amended accordingly pursuant to Rule 1111 (4).
1.3 Mr Arnold was present at the hearing and he indicated that the charge was admitted.
1.4 The charge was found proved accordingly.
2.0 The Rules
2.1 Rule 1004 provides as follows:
(6) No person shall during any day of racing, in respect of a horse entered in a race, administer by injection, nasal gastric tube, gastric tube, ventilator, or nebulizer any substance whatsoever. Where such administration occurs both the person and the trainer commit a breach of this sub-rule unless such device was used after the horse had raced or under the direction or supervision of a club veterinary surgeon, Racecourse Inspector or Stipendiary Steward.
For the purposes of this sub-rule the day of racing is deemed to commence 12 hours prior to the first race and conclude half an hour after the last race.
3.0 Facts
3.1 Mr Kitto presented a Summary of Facts which may be summarised as follows.
3.2 Mr Arnold holds a Licence to Train and a Trials Horseman’s Licence under the Rules of Harness Racing. He is aged 57 years and has held the licences for some 20 years.
3.3 He resides in Leeston and trains the horses MANTORP and COBBER CLEARY from that property.
3.4 Both horses were acceptances for the Timaru Harness Racing Club’s race meeting being held at the Phar Lap Raceway on Sunday, 1st May 2011. Race 1 started at 11.40 am.
3.5 At 7.00am that morning, when Mr Arnold was giving his horses their morning feed, He also squeezed a substance “Boost”, from a tube that the substance was supplied in, directly onto the tongues of both horses. This was approximately 4 ½ hours before Race 1.
3.6 Mr Arnold’s explanation was that he had been led to believe that it helped horses recover from the stresses of raceday. He further explained that the horses usually spat most of it out on to the ground.
3.7 Upon returning to the stables, he noticed that COBBER CLEARY had a lot of mucous coming from one nostril. Mr Arnold cleaned this off and applied some nasal ointment around the nostril. Approximately two minutes later, the horse started blowing air out of its nose and discharging mucous. It was a similar colour to the “Boost” with a “sausage skin coloured pink” that Mr Arnold thought could be blood.
3.8 Upon arriving at the course at 10.40am, Mr Arnold had the raceday Veterinarian, Ms Donna Williamson, examine COBBER CLEARY. She considered the horse to be bright but noted it still had a discharge from its left nostril. Mr Arnold told her that he had given the horse some “Boost” paste that morning. It was Ms Williamson’s recommendation that the horse be scratched and she reported this to the Stipendiary Stewards.
3.9 Mr Arnold was summoned to the Stipendiary Stewards room and he confirmed that he had orally administered “Boost” that morning to both MANTORP and COBBER CLEARY. When questioned by Stipendiary Steward, Mr Ydgren, Mr Arnold said that he was unaware that it was forbidden to administer a substance by squeezing it out of a tube. He said to Mr Ydgren that the “Boost” was “just like a kind of food”.
3.10 COBBER CLEARY was scratched from its race. MANTORP raced but failed to win any stake money. Both horses were pre-race blood tested and urine swabbed but the samples were cleared “negative” by the Racing Laboratory following analysis.
3.11 Mr Kitto did not seek disqualification of MANTORP in Race 3.
3.12 Dr Andrew Grierson, the industry drug consultant, advised that “Boost” contains no prohibited substance.
3.13 Mr Arnold believed that he was squeezing a food onto the horses’ tongues. He was not aware, he said, of the Appeal Tribunal ruling in the case of C v HRNZ where it was held that even squeezing a tube of cream into any passage or cavity (including a cut) constituted an “administration by injection”. He said that he was aware that one could not administer a “prohibited substance” to a horse on race day, but genuinely believed that “Boost” was a horse feed and not prohibited.
4.0 Defendant’s Submissions
4.1 Mr Arnold said that, whilst he first obtained a licence 20 years ago, he was unlicensed for the period 2000 to 2008. The decision in the case of C v HRNZ was released in that period when he was unlicensed and he was totally unaware of the finding in that case (see Clause 3.12), he said. He submitted that the Prohibited Substance Rule existed to prevent administration of prohibited substances and, as part of that, to uphold the integrity or “public image” of harness racing. He submitted that he had not administered a prohibited substance and, because he administered the “Boost” at home, neither was the integrity of harness racing compromised.
4.2 Mr Arnold said that the matter had come to the attention of the authorities only because he was concerned for the welfare of his horse.
4.3 The wording of Rule 1004 (6) does not refer to administration by squeezing from a tube, he said, but he accepted that the case of C v HRNZ applied.
4.4 He said that if COBBER CLEARY had been the only horse to race that day, he would not have taken it to the meeting. However, he had MANTORP racing also and he decided to have COBBER CLEARY checked by the Veterinary Surgeon at the race meeting.
5.0 Discussion
5.1 Mr Kitto produced the dispenser of “Boost” which had been used by Mr Arnold. Mr Arnold explained that he used one dispenser between two horses by putting the contents on the tongue. It could be put in the feed but the problem was ensuring that the horse consumed it. It was freely available to purchase, he said.
6.0 Penalty Submissions
6.1 Mr Kitto referred to the penalty provision in Rule 1003 of the New Zealand Rules of Harness racing under the heading of “General Penalties”. That Rule provides:
(1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111 (1), 113 (5), 507 (4), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) a fine not exceeding $5,000.00 and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months.
6.2 Mr Kitto presented copies of the decisions in two previous cases – the thoroughbred case of S (2008) and the harness racing case of L (2009). In the former case, the offence was committed on a racecourse and the defendant was fined $750. In the latter, the substance was administered at the stable prior to the horse being transferred to the racecourse for the New Zealand Trotting Cup. The trainer in that case was fined $1,000.
6.3 It was only through Mr Arnold’s “frank and honest explanation” to the raceday Veterinarian that this matter came to the attention of raceday officials. There were no witnesses as the incident took place in the privacy of Mr Arnold’s stables.
6.4 Mr Kitto submitted that Mr Arnold believed that he was squeezing a feed additive onto the tongues of the two horses and it had not occurred to him that he was administering a substance by injection in contravention of the Rule. Neither did he have any knowledge of the decision in the C v HRNZ case.
6.5 Mr Kitto stated that Mr Arnold only trains his own horses on a small scale. He has, at all times, cooperated with officials and has at all times been frank and honest – in fact, his honesty has put him in the present position. He has an unblemished position within the industry.
6.6 Mr Kitto submitted that the breach could be dealt with by way of a fine. He referred to the circumstances of the fines imposed in the two cases referred to of S and L.
6.7 Mr Kitto submitted that a fine of $500 was appropriate.
6.8 Mr Kitto said that it was not necessary to consider the matter of disqualification as COBBER CLEARY had been scratched from Race 7 and MANTORP had run out of a stakes-bearing placing in Race 3.
7.0 Defendant’s Penalty Submissions
7.1 Mr Arnold said that, since taking out a licence 20 years ago, he has put a lot of money into harness racing for very little return. His personal circumstances were such that he was unable to afford a large fine. He added that a “guilty verdict” was, in the circumstances, inappropriate. He referred to his unblemished record. The present breach could have been dealt with by a warning, he submitted. He further submitted that the Committee should consider a “discharge without conviction” as, to have it on his record, was out of proportion to the seriousness of the breach.
8.0 Reasons for Penalty
8.1 There is a prohibition imposed by Rule 1004 (6) against administering any substance whatsoever on raceday, by any one or more of the methods specified in the Rule. In the present case, Mr Arnold has been charged with administering by injection a complex oral supplement for horses called “Boost”, which is not a prohibited substance and is freely available for purchase. It is now settled racing law, following the Appeals Tribunal decision in the case of C v HRNZ, that administering by syringe or tube into the mouth of a horse is deemed to be an administration by “injection” and Mr Arnold, quite properly, acknowledged this.
8.2 There can be varying degrees of seriousness as far as breaches of the Rule are concerned. Obviously, the substance administered and the circumstances in which it is administered are very important factors in assessing the seriousness of the breach.
8.3 In the present case, the substance was a commercial product freely sold as “Boost”, an oral supplement for horse containing, the Committee understands, amino acids, vitamins, electrolytes and minerals. It is certainly not a prohibited substance. This is a big factor in Mr Arnold’s favour.
8.4 There is another factor relating to the administration in the present case and that is that Mr Arnold administered the “Boost” to the two horses at his property prior to taking them to the race meeting. This is less serious than administering at the race track where the conduct would be likely to have been noticed by members of the public, bringing harness racing into disrepute.
8.5 The substance administered and the circumstances of the administration place the offending in this case at the lower end of a scale of seriousness.
8.6 Other mitigating factors are Mr Arnold’s admission of the breach, his cooperation during the investigation and his previous unblemished record.
8.7 It is also material that the breach would not have been detected but for Mr Arnold’s concern for the welfare of his horse, COBBER CLEARY, which concern led him to report the circumstances to the raceday Veterinarian who, in turn, reported the matter to the Stipendiary Stewards on the day. Mr Arnold was quite naïve and the Committee accepts as genuine his explanation that he was unaware that it was a breach of the Rules to do what he did.
8.8 Mr Kitto referred two other cases to the Committee (see 6.2 above). In one of those cases, the administration took place at the course and the defendant was fined $750. In the other, whilst the administration took place at the stables prior to the horse being taken to the course, the horse was a runner in the New Zealand Trotting Cup later that day. The defendant in that case was fined the sum of $1,000. In neither case was the substance a prohibited substance.
8.9 The Committee is satisfied that this case is less serious than both of those cases and, accordingly, a lesser penalty is called for. Having said that, a penalty needs to be imposed that is sufficient to underline to other industry participants that it is a quite serious matter to administer any substance to a horse on any “day of racing” as defined in the Rule.
Penalty:
9.0 Penalty
9.1 Taking into account all of the above factors, the Committee has determined that the appropriate penalty is a fine of $400 and Mr Arnold is fined that amount.
10.0 Costs
10.1 Mr Arnold is ordered to pay costs in the sum of $350 towards the hearing costs of the Judicial Control Authority.
R G McKenzie J M Phelan
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 11/10/2011
Publish Date: 11/10/2011
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: a7989a985942b12de049c720dda3b2cd
informantnumber: 63983
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 11/10/2011
hearing_title: Non Raceday Inquiry RIU v AJ Arnold 30 September 2011 - Reserved Decision dated 10 October 2011
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
IN THE MATTER of the New Zealand
Rules of Harness
Racing
AND
IN THE MATTER of Information No. 63983
BETWEEN BARRY ALEXANDER KITTO, Racing Investigator for the Racing Integrity Unit
Informant
AND EDWARD WILLIAM ARNOLD, of Leeston, Holder of Licence to Train
Defendant
DATE OF HEARING: Friday, 30 September 2011
VENUE: Judicial Room, Addington Raceway, Christchurch
JUDICIAL COMMITTEE: R G McKenzie (Chairman) - J M Phelan (Committee Member)
PRESENT: Mr B A Kitto (Informant), Mr E W Arnold (Defendant), Mr S P Renault, Registrar
DATE OF DECISION: 10 October 2011
RESERVED DECISION OF JUDICIAL COMMITTEE
1.0 The Charges
1.1 Information No. 63983 alleges as follows:
THAT on the 1st day of May 2011, at the Timaru Harness Racing Club’s meeting held at Phar Lap Raceway, Timaru, during the day of racing in respect of the horses entered in races and prior to the horses racing, in respect of the horse MANTRAP race 3 and the horse COBBER CLEARY in race 7, you did administer by injection a substance, namely, “Boost” in breach of Rule 1004 (6) and you and the horses are liable to the penalty or penalties which may be imposed in accordance with Rules 1003 (1) (a), (b) and (c) and 1003 (2) (a) and (b) (i), (ii) and (iii) of the New Zealand Rules of Harness Racing.
1.2 It was established that the information incorrectly shows the horse as “MANTRAP”. The correct name of that horse is “MANTORP”. The information was amended accordingly pursuant to Rule 1111 (4).
1.3 Mr Arnold was present at the hearing and he indicated that the charge was admitted.
1.4 The charge was found proved accordingly.
2.0 The Rules
2.1 Rule 1004 provides as follows:
(6) No person shall during any day of racing, in respect of a horse entered in a race, administer by injection, nasal gastric tube, gastric tube, ventilator, or nebulizer any substance whatsoever. Where such administration occurs both the person and the trainer commit a breach of this sub-rule unless such device was used after the horse had raced or under the direction or supervision of a club veterinary surgeon, Racecourse Inspector or Stipendiary Steward.
For the purposes of this sub-rule the day of racing is deemed to commence 12 hours prior to the first race and conclude half an hour after the last race.
3.0 Facts
3.1 Mr Kitto presented a Summary of Facts which may be summarised as follows.
3.2 Mr Arnold holds a Licence to Train and a Trials Horseman’s Licence under the Rules of Harness Racing. He is aged 57 years and has held the licences for some 20 years.
3.3 He resides in Leeston and trains the horses MANTORP and COBBER CLEARY from that property.
3.4 Both horses were acceptances for the Timaru Harness Racing Club’s race meeting being held at the Phar Lap Raceway on Sunday, 1st May 2011. Race 1 started at 11.40 am.
3.5 At 7.00am that morning, when Mr Arnold was giving his horses their morning feed, He also squeezed a substance “Boost”, from a tube that the substance was supplied in, directly onto the tongues of both horses. This was approximately 4 ½ hours before Race 1.
3.6 Mr Arnold’s explanation was that he had been led to believe that it helped horses recover from the stresses of raceday. He further explained that the horses usually spat most of it out on to the ground.
3.7 Upon returning to the stables, he noticed that COBBER CLEARY had a lot of mucous coming from one nostril. Mr Arnold cleaned this off and applied some nasal ointment around the nostril. Approximately two minutes later, the horse started blowing air out of its nose and discharging mucous. It was a similar colour to the “Boost” with a “sausage skin coloured pink” that Mr Arnold thought could be blood.
3.8 Upon arriving at the course at 10.40am, Mr Arnold had the raceday Veterinarian, Ms Donna Williamson, examine COBBER CLEARY. She considered the horse to be bright but noted it still had a discharge from its left nostril. Mr Arnold told her that he had given the horse some “Boost” paste that morning. It was Ms Williamson’s recommendation that the horse be scratched and she reported this to the Stipendiary Stewards.
3.9 Mr Arnold was summoned to the Stipendiary Stewards room and he confirmed that he had orally administered “Boost” that morning to both MANTORP and COBBER CLEARY. When questioned by Stipendiary Steward, Mr Ydgren, Mr Arnold said that he was unaware that it was forbidden to administer a substance by squeezing it out of a tube. He said to Mr Ydgren that the “Boost” was “just like a kind of food”.
3.10 COBBER CLEARY was scratched from its race. MANTORP raced but failed to win any stake money. Both horses were pre-race blood tested and urine swabbed but the samples were cleared “negative” by the Racing Laboratory following analysis.
3.11 Mr Kitto did not seek disqualification of MANTORP in Race 3.
3.12 Dr Andrew Grierson, the industry drug consultant, advised that “Boost” contains no prohibited substance.
3.13 Mr Arnold believed that he was squeezing a food onto the horses’ tongues. He was not aware, he said, of the Appeal Tribunal ruling in the case of C v HRNZ where it was held that even squeezing a tube of cream into any passage or cavity (including a cut) constituted an “administration by injection”. He said that he was aware that one could not administer a “prohibited substance” to a horse on race day, but genuinely believed that “Boost” was a horse feed and not prohibited.
4.0 Defendant’s Submissions
4.1 Mr Arnold said that, whilst he first obtained a licence 20 years ago, he was unlicensed for the period 2000 to 2008. The decision in the case of C v HRNZ was released in that period when he was unlicensed and he was totally unaware of the finding in that case (see Clause 3.12), he said. He submitted that the Prohibited Substance Rule existed to prevent administration of prohibited substances and, as part of that, to uphold the integrity or “public image” of harness racing. He submitted that he had not administered a prohibited substance and, because he administered the “Boost” at home, neither was the integrity of harness racing compromised.
4.2 Mr Arnold said that the matter had come to the attention of the authorities only because he was concerned for the welfare of his horse.
4.3 The wording of Rule 1004 (6) does not refer to administration by squeezing from a tube, he said, but he accepted that the case of C v HRNZ applied.
4.4 He said that if COBBER CLEARY had been the only horse to race that day, he would not have taken it to the meeting. However, he had MANTORP racing also and he decided to have COBBER CLEARY checked by the Veterinary Surgeon at the race meeting.
5.0 Discussion
5.1 Mr Kitto produced the dispenser of “Boost” which had been used by Mr Arnold. Mr Arnold explained that he used one dispenser between two horses by putting the contents on the tongue. It could be put in the feed but the problem was ensuring that the horse consumed it. It was freely available to purchase, he said.
6.0 Penalty Submissions
6.1 Mr Kitto referred to the penalty provision in Rule 1003 of the New Zealand Rules of Harness racing under the heading of “General Penalties”. That Rule provides:
(1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111 (1), 113 (5), 507 (4), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) a fine not exceeding $5,000.00 and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months.
6.2 Mr Kitto presented copies of the decisions in two previous cases – the thoroughbred case of S (2008) and the harness racing case of L (2009). In the former case, the offence was committed on a racecourse and the defendant was fined $750. In the latter, the substance was administered at the stable prior to the horse being transferred to the racecourse for the New Zealand Trotting Cup. The trainer in that case was fined $1,000.
6.3 It was only through Mr Arnold’s “frank and honest explanation” to the raceday Veterinarian that this matter came to the attention of raceday officials. There were no witnesses as the incident took place in the privacy of Mr Arnold’s stables.
6.4 Mr Kitto submitted that Mr Arnold believed that he was squeezing a feed additive onto the tongues of the two horses and it had not occurred to him that he was administering a substance by injection in contravention of the Rule. Neither did he have any knowledge of the decision in the C v HRNZ case.
6.5 Mr Kitto stated that Mr Arnold only trains his own horses on a small scale. He has, at all times, cooperated with officials and has at all times been frank and honest – in fact, his honesty has put him in the present position. He has an unblemished position within the industry.
6.6 Mr Kitto submitted that the breach could be dealt with by way of a fine. He referred to the circumstances of the fines imposed in the two cases referred to of S and L.
6.7 Mr Kitto submitted that a fine of $500 was appropriate.
6.8 Mr Kitto said that it was not necessary to consider the matter of disqualification as COBBER CLEARY had been scratched from Race 7 and MANTORP had run out of a stakes-bearing placing in Race 3.
7.0 Defendant’s Penalty Submissions
7.1 Mr Arnold said that, since taking out a licence 20 years ago, he has put a lot of money into harness racing for very little return. His personal circumstances were such that he was unable to afford a large fine. He added that a “guilty verdict” was, in the circumstances, inappropriate. He referred to his unblemished record. The present breach could have been dealt with by a warning, he submitted. He further submitted that the Committee should consider a “discharge without conviction” as, to have it on his record, was out of proportion to the seriousness of the breach.
8.0 Reasons for Penalty
8.1 There is a prohibition imposed by Rule 1004 (6) against administering any substance whatsoever on raceday, by any one or more of the methods specified in the Rule. In the present case, Mr Arnold has been charged with administering by injection a complex oral supplement for horses called “Boost”, which is not a prohibited substance and is freely available for purchase. It is now settled racing law, following the Appeals Tribunal decision in the case of C v HRNZ, that administering by syringe or tube into the mouth of a horse is deemed to be an administration by “injection” and Mr Arnold, quite properly, acknowledged this.
8.2 There can be varying degrees of seriousness as far as breaches of the Rule are concerned. Obviously, the substance administered and the circumstances in which it is administered are very important factors in assessing the seriousness of the breach.
8.3 In the present case, the substance was a commercial product freely sold as “Boost”, an oral supplement for horse containing, the Committee understands, amino acids, vitamins, electrolytes and minerals. It is certainly not a prohibited substance. This is a big factor in Mr Arnold’s favour.
8.4 There is another factor relating to the administration in the present case and that is that Mr Arnold administered the “Boost” to the two horses at his property prior to taking them to the race meeting. This is less serious than administering at the race track where the conduct would be likely to have been noticed by members of the public, bringing harness racing into disrepute.
8.5 The substance administered and the circumstances of the administration place the offending in this case at the lower end of a scale of seriousness.
8.6 Other mitigating factors are Mr Arnold’s admission of the breach, his cooperation during the investigation and his previous unblemished record.
8.7 It is also material that the breach would not have been detected but for Mr Arnold’s concern for the welfare of his horse, COBBER CLEARY, which concern led him to report the circumstances to the raceday Veterinarian who, in turn, reported the matter to the Stipendiary Stewards on the day. Mr Arnold was quite naïve and the Committee accepts as genuine his explanation that he was unaware that it was a breach of the Rules to do what he did.
8.8 Mr Kitto referred two other cases to the Committee (see 6.2 above). In one of those cases, the administration took place at the course and the defendant was fined $750. In the other, whilst the administration took place at the stables prior to the horse being taken to the course, the horse was a runner in the New Zealand Trotting Cup later that day. The defendant in that case was fined the sum of $1,000. In neither case was the substance a prohibited substance.
8.9 The Committee is satisfied that this case is less serious than both of those cases and, accordingly, a lesser penalty is called for. Having said that, a penalty needs to be imposed that is sufficient to underline to other industry participants that it is a quite serious matter to administer any substance to a horse on any “day of racing” as defined in the Rule.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
9.0 Penalty
9.1 Taking into account all of the above factors, the Committee has determined that the appropriate penalty is a fine of $400 and Mr Arnold is fined that amount.
10.0 Costs
10.1 Mr Arnold is ordered to pay costs in the sum of $350 towards the hearing costs of the Judicial Control Authority.
R G McKenzie J M Phelan
Chairman Committee Member
hearing_type: Non-race day
Rules: 1004(6)
Informant: Mr BA Kitto - Racing Investigator
JockeysandTrainer:
Otherperson:
PersonPresent: Mr SP Renault - Registrar
Respondent: Mr EW Arnold - Holder of Licence to Train
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