Archive Decision

This decision has been migrated from the JCA website. Information is accurate but formatting may differ from contemporary decisions. Please contact us for any further enquiries.

Non Raceday Inquiry RIU v ALJ Lynch – Reasons for Decision dated 16 October 2015

ID: JCA16370

Hearing Type:
Non-race day

Decision:

BEFORE A JUDICIAL COMMITTEE

HELD AT AUCKLAND

IN THE MATTER of New Zealand Rules of Harness Racing

BETWEEN Mr B Kitto (Investigator for the Racing Integrity Unit)

Informant

AND

Mr A L J Lynch (Licensed Trainer)

Defendant

JUDICIAL COMMITTEE: Mr G Jones, Chair - Mr A Dooley, Committee Member

VENUE: Alexandra Park, Auckland

PERSONS PRESENT: Mr N Grimstone (RIU), Mr B Kitto (RIU by phone) and Mr A Cruickshank (Registrar)

DATE OF HEARING: 9 October 2015

DATE OF ORAL DECISION: 9 October 2015

DATE OF REASONS FOR DECISION: 16 October 2015

DECISION OF THE JUDICIAL COMMITTEE

THE CHARGES

[1] Three charges have been laid against Harness Trainer, Mr A L J Lynch (the “Defendant”) by Mr B Kitto of the Racing Integrity Unit (the “Informant”) alleging the Defendant:

Charge 1

On or about Friday the 12th day of June, 2015, being the Trainer of the registered Standard bred Horse “THIS SKY ROX” you did administer to “THIS SKY ROX”, which was taken to a racecourse for the purpose of engaging in a race, namely Race 3, The Mid Winter Christmas Trot at the Auckland Trotting Club Inc., race meeting held at the Alexandra Park Racecourse, a prohibited substance, namely Aminorex, which is a stimulant and is an equine metabolite of Phenyltetrahydroimidazothiazole, in breach of Rule 1001(1)(q) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1001(2)(a)(b)(c) and “THIS SKY ROX” is liable to the penalty or penalties which may be imposed in accordance with Rules 1001(3) and 1004(D) of the New Zealand Rules of Harness Racing

Charge 2

On or about Friday the 19th day of June, 2015, being the Trainer of the registered standard bred horse “THIS SKY ROX” you did administer to “THIS SKY ROX” which had been taken to a racecourse for the purpose of engaging in a race, namely Race 3, The Coromandel FM Trot, at the Franklin Trotting Club’s race meeting, held at the Alexandra Park Racecourse, a prohibited substance, namely Aminorex, which is a stimulant and is an equine metabolite of Phenyltetrahydroimidazothiazole, in breach of Rule 1001(1)(q) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1001(2)(a)(b)(c) and “THIS SKY ROX” is liable to the penalty or penalties which may be imposed in accordance with Rules 1001(3) and 1004(D) of the New Zealand Rules of Harness Racing

Charge 3

On or about Friday the 10th day of July, 2015, being the Trainer of the registered standardbred horse “THIS SKY ROX”, you did administer to “THIS SKY ROX” which was taken to a racecourse for the purpose of engaging in a race, namely Race 8, The Mitavite Trot, at the Auckland Trotting Club Inc., race meeting held at the Alexandra Park Racecourse, a prohibited substance, namely Aminorex, which is a stimulant and is an equine metabolite of Phenyltetrahydroimidazothiazole, in breach of Rule 1001(1)(q) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1001(2)(a)(b)(c) and “THIS SKY ROX” is liable to the penalty or penalties which may be imposed in accordance with Rules 1001(3) and 1004(D) of the New Zealand Rules of Harness Racing.

[2] New Zealand Rules of Harness Racing (“the Rules”) relevant to this hearing are set out in rules 1001(1) (q), 1001(2) (a) (b) (c) and 1001(3) and 1004 D.

Rule 1001(1) (q) provides:

Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country — (q) administers, causes or permits to be administered or who attempts to administer or to cause to be administered or who permits any person to administer or cause to be administered to any horse which is taken or is to be taken to a racecourse for the purpose of engaging in a race any prohibited substance.”

Rule 1001 (2) (a) provides:

A fine not exceeding $30.000; and/or ill suspension from holding or obtaining a licence, for any specific period or for life; and/or disqualification for a specific period or life. Rule 1001 (3) The Judicial Committee may in addition to or substitution of any penalty imposed under sub-rule (2) hereof disqualify from any race and/or for any specific period or for life any horse connected with the serious racing offence.

Rule 1002 (1) provides:

Every person commits a breach of these Rules who:

(a) does any act, or is responsible for any omission, which is declared or deemed by any of these Rules to be a breach of these Rules or of any of them or of any sub-rule or any of them; (b) acts in contravention of or fails to comply with any provision of these Rules or any Regulations made thereunder, or any notice, direction, instruction, restriction, requirement or condition given, made or imposed under these Rules; (c) commits a serious racing offence;

Rule 1004D provides:

Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.

[3] By way of memorandum dated 30 July 2015, Mr Godber, the General Manager: RIU authorised the filing of the charges against Mr Lynch pursuant to Rule 1103 (4) (c) of the NZ Rules of Harness Racing.

[4] Information number A4813 includes a schedule which sets out the particulars of the 3 charges. NZ Rules of Harness Racing permit one information to include more than one charge.

Rule 11061(1) provides:

An information may: (b) allege one or more breach of the Rules.

[5] At 2 pm on 24 September 2015 the Judicial Committee (“the Committee”) convened a telephone conference. Participants included Mr Lynch and Mr Grimstone of the Racing Integrity Unit (RIU), representing the Informant.

[6] The purpose of the conference was to clarify the procedure to be adopted at the hearing; to seek an indication from Mr Lynch as to his plea and advice as to whether or not any of the evidence could be formally accepted and admitted by consent in hand-up form. An additional purpose of the conference was to provide both the Informant and Defendant with the opportunity to raise any queries, concerns or residual matters.

[7] Mr Lynch confirmed to the Committee that he did not admit the charges, but he did advise that the facts were formally admitted concerning the proposed evidence relating to swabbing procedures, laboratory analysis and the Certificate of Analysis. He also confirmed that he accepted and formally admitted interview evidence of Racing Investigators Mr A Cruickshank and Mr B Oliver and that he did not require their presence at the hearing. He indicated that he did not wish to cross examine them on any aspects of their proposed evidence. On that basis the Committee advised the Informant that Mr Cruickshank and Mr Oliver were not required to attend the hearing.

[8] Mr Lynch also indicated that he did require the Informant to call the Chief Veterinarian for Harness Racing New Zealand, Dr A Grierson.

9] The hearing was convened at Alexandra Park on 9 October 2015. Mr Grimstone appeared on behalf of the Informant.

[10] Each of the 3 charges were put to Mr Lynch and he confirmed that he did not admit the breaches, but he did confirm that he accepted swabbing procedures and the results of analysis carried out on post race urine samples taken from his horse THIS SKY ROX.

[11] The proposed procedure for the hearing was outlined by the Committee and no queries or concerns were raised by either party.

EVIDENCE FOR THE INFORMANT

At the commencement of the Informant’s case Mr Grimstone presented ‘hand up’ witness briefs and supporting documents in relation to uncontested evidence which was formally admitted by consent. These included the following information:

a) The General Manager RIU letter of authority to file 3 charges against the Defendant alleging breaches of rule 1001(1) (q).

b) Official race results for race meetings held at Auckland Trotting Club on 12 June 2015, 19 June 2015 and 7 July 2015.

c) Briefs of evidence relating to RIU swabbing officials, relevant swabbing records and Certificates of Analysis in relation to all 3 charges.

d) Brief of evidence of RIU Racing Investigator Mr A Cruickshank relating to his interview with the Defendant regarding Charge No 2. This document includes the transcript of 2 separate interviews that took place on 14 July 2015.

e) Brief of evidence of RIU Racing Investigator Mr B Oliver relating to his interview with the Defendant regarding Charge No’s 1 and 3. This document includes the transcript of the interview that took place on 24 July 2015.

f) Letter, dated 30 July 2015, from Dr Andrew R Grierson, Chief Veterinarian, Harness Racing New Zealand to Mr B Kitto of the RIU. This letter provides Mr Grierson’s expert opinion evidence on Levamisole including its use and impact.

For the sake of clarity the documents described above establish and provide formal proof of the following salient points.

[12] That on Friday the 12 June 2015, THIS SKY ROX was correctly entered, presented for racing and raced in Race 3, the Mid Winter Christmas Trot at the Auckland Trotting Club, race meeting held at the Alexandra Park racecourse finishing in 3rd place, winning a stake of $1200.00 and was 13/13 in the betting.

[13] That on Friday the 19 June 2015, THIS SKY ROX was correctly entered for, presented for racing and raced in Race 3, The Coromandel FM Trot at the Franklin Trotting Club's race meeting at Alexandra Park racecourse finishing in 1st place, winning a stake of $4552.00 and was 4/2 in the betting.

[14] That on Friday the l0 July 2015, THIS SKY ROX was correctly entered for presented for racing and raced in Race 8, the Mitavite Trot at the Auckland Trotting Club Inc., race meeting held at Alexandra Park racecourse race finishing in 6th place winning a stake of $150.00 and was 5/6 in the betting.

[15] That the Defendant is the holder of a Licence to Train, issued under the New Zealand Rules of Harness Racing and he is the trainer and part owner of the registered standard bred horse THIS SKY ROX, a 3 yr old gelding (Sky Valley-Ruxie Heart).

[16] That on all three occasions THIS SKY ROX was randomly post race swabbed voiding urine on each occasion and the Defendant was present during the swabbing process.

[17] That the three samples were forwarded to the NZ Racing Laboratory for analysis. The Laboratory reported on the 7th and 23rd July, 2015, that each urine sample detected Aminorex and (Phenyltetrahydroimidazothiazole) the chemical name for Levamisole.

[18] That during the interview in relation to charge 2, which was conducted by Racing Investigator Mr A Cruickshank on 14 July 2015, the Defendant was provided with a copy of the Certificate of Analysis and asked a series of questions which were recorded. In response he acknowledged that he generally administered THIS SKY ROX with 10 mls of a product named Scanda, every two weeks. But, following further lines of questioning regarding this he offered conflicting accounts concerning the frequency of administration, specifically variously between 5, 14 and 20 days before THIS SKY ROX was presented to raced.

[19] That during the interview conducted by Racing Investigator Mr B Oliver on 22 July 2015 in relation to charge numbers 1 and 3 the Defendant acknowledged he administered the product Scanada to THIS SKY ROX on the Sunday before each of the three race nights (Fridays), by way of syringe over the tongue.

[20] That when it was put to the Defendant the scientific evidence would suggest the doses were likely to have been administered closer to raceday, he responded that perhaps THIS SKY ROX has a slower metabolism than other horses.

[21] That during both interviews the Defendant said the product Scanda is a drench and is used as a worming agent for sheep and cattle; and he was advised many years ago by a vet in the United States to give it to horses. He said that particular 5 litre container was purchased about 4 ½ ago and he has since disposed of it.

[22] That the Defendant acknowledged he was aware the product Scanda contains Levamisole and Aminorex.

[23] That Mr Oliver met with the Defendant on 31 July at Alexandra Park and received from him his 2014 - 2015 Harness Racing Diary. At that time Mr Oliver asked the Defendant if there was anything in the diary that he should take note of. The Defendant replied “No, I should have kept better notes of what I did with the horse, but I didn’t”.

Evidence of Dr Andrew Grierson

[24] Dr Grierson presented his evidence viva voce. He advised the Committee that he was the Chief Veterinarian for Harness Racing New Zealand and that he had more than 30 years experience in the industry. By agreement his letter of 30 July, 2015, was tabled and accepted.

[25] Dr Grierson stated that Levamisole has the chemical name phenyltetrahydroimidazothiazole and is metabolised into one of three compounds in horses including the amphetamine Aminorex. He said that Levamisole does have a place in veterinary medicine as a therapeutic substance and is used sometimes for parasite control and more commonly to treat viral respiratory infections. He said the product Scanda contains Levamisole and Aminorex; and is a stimulant and equine metabolite of Levamisole.

[26] Dr Grierson advised that Aminorex is a prohibited substance as defined in the Harness New Zealand prohibited substance regulations.

[27] Dr. Grierson said that the NZ Equine Veterinary Association's recommended withholding time for Aminorex is 4.2 days.

[28] He stated that to detect both Levamisole (phenyltetrahydroimidazothiazole) and Aminorex concurrently in urine, the administration was most likely to have occurred sometime within the 24 hour period prior swabbing. He said that there have been a number of scientific studies carried out concerning the withholding time and to his knowledge there has never been a positive detection outside the 4.2 day guideline.

[29] Under cross examination by the Defendant, Dr Grierson was asked a number of questions which, in the main, related to issues around detectable dosage and the possibility of positive swab results having occurred as a result of contamination.

[30] The Defendant asked whether the test results indicate the amount of dose administered. In response Dr Grierson advised that the relationship between dosage and the results were subject to a number of varying factors including the time that each of the 3 swabs were taken and he said it was possible for small amounts of prohibited substance to be detected. But he emphasised, irrespective of the amount detected, under the “rules” detection of any prohibited substance, such as Aminorex is determined as a breach.

[31] The Defendant raised the possibility of THIS SKY ROX having rejected some of the Scanda product which he said was administered on the Sunday(s) before it raced on the following Friday(s). He asked Dr Grierson to consider the likelihood of THIS SKY ROX after having been administered this product by syringe over tongue; the horse holding the dose in its mouth for some time and then discharging the residue onto the hay in the stable; or onto the wall of the stable; or water and feed bins; and at some later time licking any of those items, thus causing contamination. Dr Grierson stated this was a most unlikely scenario.

EVIDENCE FOR THE DEFENDANT

[32] The Defendant opened his defence by submitting that he did not ‘administer’ the prohibited substance, but acknowledged that he was negligent. He later explained his rationale for taking this position was because he was careless in that he did not ensure THIS SKY ROX fully ingested the product, and giving rise to the possibility of expelling causing contamination. This reasoning is further discussed below.

[33] The Defendant advised the Committee that he first became aware there was an issue with the positive results when he was advised of the analysis result relating to the second charge, on 14 July 2015. He said that his horse had been swabbed on two previous occasions, and as far as he was concerned, without any prohibited substances being detected.

[34] The Defendant stated that he had used a 10 ml syringe to administer the product Scanda to THIS SKY ROX every Sunday prior to it racing on Friday night. He said he gave the substance to his horse as a tonic, not to improve its performance. He asked the Committee to note that THIS SKY ROX has raced 6 times for 2 wins and 4 placings.

[35] In his evidence the Defendant raised the possibility of THIS SKY ROX having rejected the product Scanda, causing contamination to areas within its stall. He said that although he had never actually seen his horse expel or dribble any of the product after placing it over the horse’s tongue, it may have occurred at any time afterwards, thus raising the opportunity for contamination to occur. The Defendant asked the Committee to consider the possibility that this proposition could have occurred on the 3 occasions relevant to the charges he was facing.

[36] The Defendant said that he had previously used the product Scanda or one similar for many years in New Zealand, Australia and the United States. The Defendant acknowledged that he knew Scanda contained Levamisole and Aminorex. He said that a 5 litre container cost $170 as opposed to similar veterinary products that cost $140 for a much smaller container and that it came down to simple economics.

[37] Under cross examination by the Informant the Defendant was asked about the various explanations he had previously given when questioned about the time delay between using the Scanda product and presenting THIS SKY ROX to race. It was put to the Defendant that he had no records relating to products given or used on his horse and that he was now conveniently saying that it was the Sundays prior to racing on Fridays so as to fit within the mandatory 4.2 withholding period. In response the Defendant vigorously denied this and advised the Committee that his diary, now held by the RIU, if available would clearly demonstrate that he did maintain good records.

[38] In reply Mr Grimstone told the Committee that the Defendants’ diary is now in the possession of Racing Investigator, Mr Kitto. He then referred the Committee to various passages contained within the interviews conducted between RIU investigators and the Defendant on this issue. He also specifically referred the Committee to Mr Oliver’s brief of evidence which included the following:

(Mr Oliver)…. asked the Defendant if there was anything in the diary that he should take note of. The Defendant replied “No, I should have kept better notes of what I did with the horse, but I didn’t”.

[39] The Committee asked the Defendant if his diary was relevant to his defence and whether or not he could, or would be disadvantaged in his defence by not being able to refer to it. He replied in the affirmative indicating his diary was of high importance and that he required his diary to refresh his memory. On that basis the Committee briefly adjourned the hearing, and through the Registrar arranged for Mr Kitto to access the Defendant’s diary and give evidence of its contents via telephone.

[40] Based on advice from the Defendant, Mr Kitto was asked to check the diary for entries between 5 June and 10 July 2015. He was particularly asked to note all entries, but with an emphasis on records relating to the administration of medicine which the Defendant indicated would be clearly evident.

[41] The examination of the diary revealed the following relevant entries - 5th, 6th, and 7th June – (Tonic 20mls). Further entries on 15th June (vet 15mls imox), 2 July (vet herpes vaccine) and 7 July (under vet lactic vinegar - pre-race Metabolase). 8 July (med 3 mls alcerguard). Mr Kitto noted that pages between 18th and 24th June 2015 had been removed from the diary.

[42] Having heard from Mr Kitto the Committee, was satisfied that there was no information in the diary, other that the reference to “tonic 20 mls” on 5th, 6th and 7th June 2015, that was of any material relevance. And if anything it did demonstrate that the Defendant’s record keeping was limited.

[43] At that point The Defendant conceded the diary was of no assistance to his defence and concluded his case.

Summing up the case for the Informant:

[44] In summing up for the Informant, Mr Grimstone submitted it was the RIU’s contention that Mr Lynch did administer Scanda, a product containing Levamisole within 24 hours of THS SKY ROX racing on all three occasions. He referred the Committee to the evidence of Dr Grierson which he submitted provides compelling scientific evidence in support of this.

[45] Mr Grimstone referred the Committee to the Appeal decision AR Beck v RIU of 11 April 2012. He submitted that this decision clarified the issue of a horse being entered to race, relevant to the administration of a prohibited substance. In that regard he said that Mr Lynch acknowledged that his horse was nominated to race on the Monday preceding the Friday race night race meeting.

[46] Mr Grimstone submitted that the issue raised by the Defendant concerning his diary had little or no relevance. He said that Mr Lynch was first made aware of the allegations on 14 July 2015 and he subsequently produced his diary for inspection on 31 July 2015. And in addition Mr Lynch on his own admission acknowledged that he did not keep good records.

[47] Mr Grimstone submitted that Mr Lynch’s explanation regarding possible contamination through rejection of the substance was fanciful and contrary to Dr Grierson’s evidence. He also, submitted that it was a questionable practice for an experienced horseman like Mr Lynch to administer a substance in the manner he described without ensuring it was ingested.

[48] Mr Grimstone submitted that Mr Lynch provided various explanations as to when he administered the product - ranging from 20 to 14 days; to the Sunday prior to his horse being presented to race on the Friday night. He said the RIU questions the reliability of this evidence and submits it is highly unreliable and has been manufactured by Mr Lynch to suit his current predicament.

Summing Up the case for the Defendant:

[49] In summing up Mr Lynch submitted that he had nothing further to add.

DECISION AND REASONS

[50] In accordance with rule 1008A, and 5th Schedule No 31, the required standard of proof is on the “balance of probabilities”, which simply means more probable or not. The onus of proof rests with the Informant.

[51] The three charges allege breaches of rule 1001(1)(q). In order for the Informant to prove those charges the Committee must be satisfied that on the dates specified in the charging document, the Defendant, being the Trainer of THIS SKY ROX, did administer a prohibited substance and present THIS SKY ROX at a racecource for the purpose of engaging in a race.

[52] The Committee having carefully considered all of the documentary evidence and that given viva voce find the following elements of the charges proven:

a) That the Defendant, Mr Lynch is a Licensed Trainer and he is the Trainer and part –owner of THIS SKY ROX.

b) That on the 3 dates relevant to each charge, namely on or about 12 June 2015, 19 June 2015 and 10 July 2015 THIS SKY ROX was taken to a racecourse, namely Alexandra Park for the purpose of engaging in a race.

c) That THIS SKY ROX was presented to race after having been administered a prohibited substance, namely Aminorex

d) That Aminorex is a stimulant (as set out in the HRNZ Prohibited Substance Regulations).

[53] The Committee has noted the requirements of Rule 1004 which provides that: (1) For the purpose of this rule a horse is presented for a race during the period commencing at 8.00 a.m. on the day of the race for which the horse is nominated and ending at the time it leaves the racecourse after the running of that race, and (1A) A horse shall be presented for a race free of prohibited substances.

[54] It was the Defendant’s evidence that he did administer the Scanda to THIS SKY ROX on each of the Sundays prior to racing on Friday night. He also told Racing Investigators when interviewed various timelines from 20, 14 and 5 days. And his diary referred to the 5th, 6th and 7th of June:”Tonic 20mls”, but contained no other entries of material relevance.

[55] The Defendant also stated in his evidence that THIS SKY ROX was nominated to race on each of the three occasions on the following Monday.

[56] The Defendant has acknowledged Scanda contained Levamisole and Aminorex. He proposed that it was possible after administering the product to his horse within what he believed to be the withholding period (i.e. on Sunday), some the dose may have dribbled onto feed, water bins or hay. He suggested as a consequence, his horse could have subsequently been contaminated prior to racing as a result thereof. The Defendant further submitted that this scenario might have occurred on three occasions relative to the charges.

[57] The Defendant acknowledged that he did not see THIS SKY ROX reject or dribble any of the product.

[58] The Committee balanced the Defendant’s suggestion of possible contamination against the evidence Dr Grierson. Dr Grierson stated that for a horse to return a positive to both Levamisole and Aminorex it is most likely to have been administered within 24 hours of testing. Dr Grierson added that the 4.2 day withholding period for Aminorex (from Levamisole) is set by the New Zealand Equine Veterinary Association. And the 4.2 days is an indicator or guide for anyone using the product for therapeutic purposes. Dr Grierson also stated that the likelihood of contamination as raised by the Defendant was most unlikely, particularly if the reason for rejecting the substance in the first place was because it was unpalatable.

[59] The Committee took particular note of Dr Grierson’s evidence that there have been a number of scientific studies carried out concerning the withholding time and to his knowledge there has never been a positive detection outside the 4.2 day guideline.

[60] In the absence of any direct evidence we reject the Defendant’s proposition that the positive swabs returned by THIS SKY ROX were the result of contamination. There is simply no evidence in support of this proposition. Further, the evidence around whether or not the product was administered on the various Sundays, in our view is unconvincing. The evidence of Dr Grierson was clear, compelling and emphatic that the administrations were “most likely” to have been within 24 hours of THIS SKY ROX being presented to race. Therefore inside the period for which THIS SKY ROX was nominated to race. On this point we accept the evidence of Dr Grierson.

[61] Even if we did consider it likely or even possible that on all three occasions THIS SKY ROX did expel or reject some of the product and as a result was later contaminated, it still does not overcome the fact that irrespective of the circumstances all horses must be presented to race free of prohibited substances. And that onus rests with the Defendant.

[62] Accordingly, the 3 charges are proven; and as a consequence, pursuant to Rule 1004D, any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.

We therefore disqualify THIS SKY ROX and order repayment of all stake money in relation to:

Charge 1

The 12th day of June, 2015, Race 3, The Mid Winter Christmas Trot at the Auckland Trotting Club Inc., race meeting held at the Alexandra Park Racecourse.

Charge 2

The 19th day of June, 2015, Race 3, The Coromandel FM Trot, at the Franklin Trotting Club’s race meeting, held at the Alexandra Park Racecourse.

Appeal Decision: NO LINKED APPEAL DECISION

Decision Date: 19/10/2015

Publish Date: 19/10/2015

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: aac1f725b87ce0418538490a782cb11b


informantnumber:


horsename:


hearing_racingtype:


startdate: no date provided


newcharge:


plea:


penaltyrequired:


decisiondate: 19/10/2015


hearing_title: Non Raceday Inquiry RIU v ALJ Lynch - Reasons for Decision dated 16 October 2015


charge:


facts:


appealdecision: NO LINKED APPEAL DECISION


isappeal:


submissionsfordecision:


reasonsfordecision:


Decision:

BEFORE A JUDICIAL COMMITTEE

HELD AT AUCKLAND

IN THE MATTER of New Zealand Rules of Harness Racing

BETWEEN Mr B Kitto (Investigator for the Racing Integrity Unit)

Informant

AND

Mr A L J Lynch (Licensed Trainer)

Defendant

JUDICIAL COMMITTEE: Mr G Jones, Chair - Mr A Dooley, Committee Member

VENUE: Alexandra Park, Auckland

PERSONS PRESENT: Mr N Grimstone (RIU), Mr B Kitto (RIU by phone) and Mr A Cruickshank (Registrar)

DATE OF HEARING: 9 October 2015

DATE OF ORAL DECISION: 9 October 2015

DATE OF REASONS FOR DECISION: 16 October 2015

DECISION OF THE JUDICIAL COMMITTEE

THE CHARGES

[1] Three charges have been laid against Harness Trainer, Mr A L J Lynch (the “Defendant”) by Mr B Kitto of the Racing Integrity Unit (the “Informant”) alleging the Defendant:

Charge 1

On or about Friday the 12th day of June, 2015, being the Trainer of the registered Standard bred Horse “THIS SKY ROX” you did administer to “THIS SKY ROX”, which was taken to a racecourse for the purpose of engaging in a race, namely Race 3, The Mid Winter Christmas Trot at the Auckland Trotting Club Inc., race meeting held at the Alexandra Park Racecourse, a prohibited substance, namely Aminorex, which is a stimulant and is an equine metabolite of Phenyltetrahydroimidazothiazole, in breach of Rule 1001(1)(q) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1001(2)(a)(b)(c) and “THIS SKY ROX” is liable to the penalty or penalties which may be imposed in accordance with Rules 1001(3) and 1004(D) of the New Zealand Rules of Harness Racing

Charge 2

On or about Friday the 19th day of June, 2015, being the Trainer of the registered standard bred horse “THIS SKY ROX” you did administer to “THIS SKY ROX” which had been taken to a racecourse for the purpose of engaging in a race, namely Race 3, The Coromandel FM Trot, at the Franklin Trotting Club’s race meeting, held at the Alexandra Park Racecourse, a prohibited substance, namely Aminorex, which is a stimulant and is an equine metabolite of Phenyltetrahydroimidazothiazole, in breach of Rule 1001(1)(q) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1001(2)(a)(b)(c) and “THIS SKY ROX” is liable to the penalty or penalties which may be imposed in accordance with Rules 1001(3) and 1004(D) of the New Zealand Rules of Harness Racing

Charge 3

On or about Friday the 10th day of July, 2015, being the Trainer of the registered standardbred horse “THIS SKY ROX”, you did administer to “THIS SKY ROX” which was taken to a racecourse for the purpose of engaging in a race, namely Race 8, The Mitavite Trot, at the Auckland Trotting Club Inc., race meeting held at the Alexandra Park Racecourse, a prohibited substance, namely Aminorex, which is a stimulant and is an equine metabolite of Phenyltetrahydroimidazothiazole, in breach of Rule 1001(1)(q) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1001(2)(a)(b)(c) and “THIS SKY ROX” is liable to the penalty or penalties which may be imposed in accordance with Rules 1001(3) and 1004(D) of the New Zealand Rules of Harness Racing.

[2] New Zealand Rules of Harness Racing (“the Rules”) relevant to this hearing are set out in rules 1001(1) (q), 1001(2) (a) (b) (c) and 1001(3) and 1004 D.

Rule 1001(1) (q) provides:

Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country — (q) administers, causes or permits to be administered or who attempts to administer or to cause to be administered or who permits any person to administer or cause to be administered to any horse which is taken or is to be taken to a racecourse for the purpose of engaging in a race any prohibited substance.”

Rule 1001 (2) (a) provides:

A fine not exceeding $30.000; and/or ill suspension from holding or obtaining a licence, for any specific period or for life; and/or disqualification for a specific period or life. Rule 1001 (3) The Judicial Committee may in addition to or substitution of any penalty imposed under sub-rule (2) hereof disqualify from any race and/or for any specific period or for life any horse connected with the serious racing offence.

Rule 1002 (1) provides:

Every person commits a breach of these Rules who:

(a) does any act, or is responsible for any omission, which is declared or deemed by any of these Rules to be a breach of these Rules or of any of them or of any sub-rule or any of them; (b) acts in contravention of or fails to comply with any provision of these Rules or any Regulations made thereunder, or any notice, direction, instruction, restriction, requirement or condition given, made or imposed under these Rules; (c) commits a serious racing offence;

Rule 1004D provides:

Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.

[3] By way of memorandum dated 30 July 2015, Mr Godber, the General Manager: RIU authorised the filing of the charges against Mr Lynch pursuant to Rule 1103 (4) (c) of the NZ Rules of Harness Racing.

[4] Information number A4813 includes a schedule which sets out the particulars of the 3 charges. NZ Rules of Harness Racing permit one information to include more than one charge.

Rule 11061(1) provides:

An information may: (b) allege one or more breach of the Rules.

[5] At 2 pm on 24 September 2015 the Judicial Committee (“the Committee”) convened a telephone conference. Participants included Mr Lynch and Mr Grimstone of the Racing Integrity Unit (RIU), representing the Informant.

[6] The purpose of the conference was to clarify the procedure to be adopted at the hearing; to seek an indication from Mr Lynch as to his plea and advice as to whether or not any of the evidence could be formally accepted and admitted by consent in hand-up form. An additional purpose of the conference was to provide both the Informant and Defendant with the opportunity to raise any queries, concerns or residual matters.

[7] Mr Lynch confirmed to the Committee that he did not admit the charges, but he did advise that the facts were formally admitted concerning the proposed evidence relating to swabbing procedures, laboratory analysis and the Certificate of Analysis. He also confirmed that he accepted and formally admitted interview evidence of Racing Investigators Mr A Cruickshank and Mr B Oliver and that he did not require their presence at the hearing. He indicated that he did not wish to cross examine them on any aspects of their proposed evidence. On that basis the Committee advised the Informant that Mr Cruickshank and Mr Oliver were not required to attend the hearing.

[8] Mr Lynch also indicated that he did require the Informant to call the Chief Veterinarian for Harness Racing New Zealand, Dr A Grierson.

9] The hearing was convened at Alexandra Park on 9 October 2015. Mr Grimstone appeared on behalf of the Informant.

[10] Each of the 3 charges were put to Mr Lynch and he confirmed that he did not admit the breaches, but he did confirm that he accepted swabbing procedures and the results of analysis carried out on post race urine samples taken from his horse THIS SKY ROX.

[11] The proposed procedure for the hearing was outlined by the Committee and no queries or concerns were raised by either party.

EVIDENCE FOR THE INFORMANT

At the commencement of the Informant’s case Mr Grimstone presented ‘hand up’ witness briefs and supporting documents in relation to uncontested evidence which was formally admitted by consent. These included the following information:

a) The General Manager RIU letter of authority to file 3 charges against the Defendant alleging breaches of rule 1001(1) (q).

b) Official race results for race meetings held at Auckland Trotting Club on 12 June 2015, 19 June 2015 and 7 July 2015.

c) Briefs of evidence relating to RIU swabbing officials, relevant swabbing records and Certificates of Analysis in relation to all 3 charges.

d) Brief of evidence of RIU Racing Investigator Mr A Cruickshank relating to his interview with the Defendant regarding Charge No 2. This document includes the transcript of 2 separate interviews that took place on 14 July 2015.

e) Brief of evidence of RIU Racing Investigator Mr B Oliver relating to his interview with the Defendant regarding Charge No’s 1 and 3. This document includes the transcript of the interview that took place on 24 July 2015.

f) Letter, dated 30 July 2015, from Dr Andrew R Grierson, Chief Veterinarian, Harness Racing New Zealand to Mr B Kitto of the RIU. This letter provides Mr Grierson’s expert opinion evidence on Levamisole including its use and impact.

For the sake of clarity the documents described above establish and provide formal proof of the following salient points.

[12] That on Friday the 12 June 2015, THIS SKY ROX was correctly entered, presented for racing and raced in Race 3, the Mid Winter Christmas Trot at the Auckland Trotting Club, race meeting held at the Alexandra Park racecourse finishing in 3rd place, winning a stake of $1200.00 and was 13/13 in the betting.

[13] That on Friday the 19 June 2015, THIS SKY ROX was correctly entered for, presented for racing and raced in Race 3, The Coromandel FM Trot at the Franklin Trotting Club's race meeting at Alexandra Park racecourse finishing in 1st place, winning a stake of $4552.00 and was 4/2 in the betting.

[14] That on Friday the l0 July 2015, THIS SKY ROX was correctly entered for presented for racing and raced in Race 8, the Mitavite Trot at the Auckland Trotting Club Inc., race meeting held at Alexandra Park racecourse race finishing in 6th place winning a stake of $150.00 and was 5/6 in the betting.

[15] That the Defendant is the holder of a Licence to Train, issued under the New Zealand Rules of Harness Racing and he is the trainer and part owner of the registered standard bred horse THIS SKY ROX, a 3 yr old gelding (Sky Valley-Ruxie Heart).

[16] That on all three occasions THIS SKY ROX was randomly post race swabbed voiding urine on each occasion and the Defendant was present during the swabbing process.

[17] That the three samples were forwarded to the NZ Racing Laboratory for analysis. The Laboratory reported on the 7th and 23rd July, 2015, that each urine sample detected Aminorex and (Phenyltetrahydroimidazothiazole) the chemical name for Levamisole.

[18] That during the interview in relation to charge 2, which was conducted by Racing Investigator Mr A Cruickshank on 14 July 2015, the Defendant was provided with a copy of the Certificate of Analysis and asked a series of questions which were recorded. In response he acknowledged that he generally administered THIS SKY ROX with 10 mls of a product named Scanda, every two weeks. But, following further lines of questioning regarding this he offered conflicting accounts concerning the frequency of administration, specifically variously between 5, 14 and 20 days before THIS SKY ROX was presented to raced.

[19] That during the interview conducted by Racing Investigator Mr B Oliver on 22 July 2015 in relation to charge numbers 1 and 3 the Defendant acknowledged he administered the product Scanada to THIS SKY ROX on the Sunday before each of the three race nights (Fridays), by way of syringe over the tongue.

[20] That when it was put to the Defendant the scientific evidence would suggest the doses were likely to have been administered closer to raceday, he responded that perhaps THIS SKY ROX has a slower metabolism than other horses.

[21] That during both interviews the Defendant said the product Scanda is a drench and is used as a worming agent for sheep and cattle; and he was advised many years ago by a vet in the United States to give it to horses. He said that particular 5 litre container was purchased about 4 ½ ago and he has since disposed of it.

[22] That the Defendant acknowledged he was aware the product Scanda contains Levamisole and Aminorex.

[23] That Mr Oliver met with the Defendant on 31 July at Alexandra Park and received from him his 2014 - 2015 Harness Racing Diary. At that time Mr Oliver asked the Defendant if there was anything in the diary that he should take note of. The Defendant replied “No, I should have kept better notes of what I did with the horse, but I didn’t”.

Evidence of Dr Andrew Grierson

[24] Dr Grierson presented his evidence viva voce. He advised the Committee that he was the Chief Veterinarian for Harness Racing New Zealand and that he had more than 30 years experience in the industry. By agreement his letter of 30 July, 2015, was tabled and accepted.

[25] Dr Grierson stated that Levamisole has the chemical name phenyltetrahydroimidazothiazole and is metabolised into one of three compounds in horses including the amphetamine Aminorex. He said that Levamisole does have a place in veterinary medicine as a therapeutic substance and is used sometimes for parasite control and more commonly to treat viral respiratory infections. He said the product Scanda contains Levamisole and Aminorex; and is a stimulant and equine metabolite of Levamisole.

[26] Dr Grierson advised that Aminorex is a prohibited substance as defined in the Harness New Zealand prohibited substance regulations.

[27] Dr. Grierson said that the NZ Equine Veterinary Association's recommended withholding time for Aminorex is 4.2 days.

[28] He stated that to detect both Levamisole (phenyltetrahydroimidazothiazole) and Aminorex concurrently in urine, the administration was most likely to have occurred sometime within the 24 hour period prior swabbing. He said that there have been a number of scientific studies carried out concerning the withholding time and to his knowledge there has never been a positive detection outside the 4.2 day guideline.

[29] Under cross examination by the Defendant, Dr Grierson was asked a number of questions which, in the main, related to issues around detectable dosage and the possibility of positive swab results having occurred as a result of contamination.

[30] The Defendant asked whether the test results indicate the amount of dose administered. In response Dr Grierson advised that the relationship between dosage and the results were subject to a number of varying factors including the time that each of the 3 swabs were taken and he said it was possible for small amounts of prohibited substance to be detected. But he emphasised, irrespective of the amount detected, under the “rules” detection of any prohibited substance, such as Aminorex is determined as a breach.

[31] The Defendant raised the possibility of THIS SKY ROX having rejected some of the Scanda product which he said was administered on the Sunday(s) before it raced on the following Friday(s). He asked Dr Grierson to consider the likelihood of THIS SKY ROX after having been administered this product by syringe over tongue; the horse holding the dose in its mouth for some time and then discharging the residue onto the hay in the stable; or onto the wall of the stable; or water and feed bins; and at some later time licking any of those items, thus causing contamination. Dr Grierson stated this was a most unlikely scenario.

EVIDENCE FOR THE DEFENDANT

[32] The Defendant opened his defence by submitting that he did not ‘administer’ the prohibited substance, but acknowledged that he was negligent. He later explained his rationale for taking this position was because he was careless in that he did not ensure THIS SKY ROX fully ingested the product, and giving rise to the possibility of expelling causing contamination. This reasoning is further discussed below.

[33] The Defendant advised the Committee that he first became aware there was an issue with the positive results when he was advised of the analysis result relating to the second charge, on 14 July 2015. He said that his horse had been swabbed on two previous occasions, and as far as he was concerned, without any prohibited substances being detected.

[34] The Defendant stated that he had used a 10 ml syringe to administer the product Scanda to THIS SKY ROX every Sunday prior to it racing on Friday night. He said he gave the substance to his horse as a tonic, not to improve its performance. He asked the Committee to note that THIS SKY ROX has raced 6 times for 2 wins and 4 placings.

[35] In his evidence the Defendant raised the possibility of THIS SKY ROX having rejected the product Scanda, causing contamination to areas within its stall. He said that although he had never actually seen his horse expel or dribble any of the product after placing it over the horse’s tongue, it may have occurred at any time afterwards, thus raising the opportunity for contamination to occur. The Defendant asked the Committee to consider the possibility that this proposition could have occurred on the 3 occasions relevant to the charges he was facing.

[36] The Defendant said that he had previously used the product Scanda or one similar for many years in New Zealand, Australia and the United States. The Defendant acknowledged that he knew Scanda contained Levamisole and Aminorex. He said that a 5 litre container cost $170 as opposed to similar veterinary products that cost $140 for a much smaller container and that it came down to simple economics.

[37] Under cross examination by the Informant the Defendant was asked about the various explanations he had previously given when questioned about the time delay between using the Scanda product and presenting THIS SKY ROX to race. It was put to the Defendant that he had no records relating to products given or used on his horse and that he was now conveniently saying that it was the Sundays prior to racing on Fridays so as to fit within the mandatory 4.2 withholding period. In response the Defendant vigorously denied this and advised the Committee that his diary, now held by the RIU, if available would clearly demonstrate that he did maintain good records.

[38] In reply Mr Grimstone told the Committee that the Defendants’ diary is now in the possession of Racing Investigator, Mr Kitto. He then referred the Committee to various passages contained within the interviews conducted between RIU investigators and the Defendant on this issue. He also specifically referred the Committee to Mr Oliver’s brief of evidence which included the following:

(Mr Oliver)…. asked the Defendant if there was anything in the diary that he should take note of. The Defendant replied “No, I should have kept better notes of what I did with the horse, but I didn’t”.

[39] The Committee asked the Defendant if his diary was relevant to his defence and whether or not he could, or would be disadvantaged in his defence by not being able to refer to it. He replied in the affirmative indicating his diary was of high importance and that he required his diary to refresh his memory. On that basis the Committee briefly adjourned the hearing, and through the Registrar arranged for Mr Kitto to access the Defendant’s diary and give evidence of its contents via telephone.

[40] Based on advice from the Defendant, Mr Kitto was asked to check the diary for entries between 5 June and 10 July 2015. He was particularly asked to note all entries, but with an emphasis on records relating to the administration of medicine which the Defendant indicated would be clearly evident.

[41] The examination of the diary revealed the following relevant entries - 5th, 6th, and 7th June – (Tonic 20mls). Further entries on 15th June (vet 15mls imox), 2 July (vet herpes vaccine) and 7 July (under vet lactic vinegar - pre-race Metabolase). 8 July (med 3 mls alcerguard). Mr Kitto noted that pages between 18th and 24th June 2015 had been removed from the diary.

[42] Having heard from Mr Kitto the Committee, was satisfied that there was no information in the diary, other that the reference to “tonic 20 mls” on 5th, 6th and 7th June 2015, that was of any material relevance. And if anything it did demonstrate that the Defendant’s record keeping was limited.

[43] At that point The Defendant conceded the diary was of no assistance to his defence and concluded his case.

Summing up the case for the Informant:

[44] In summing up for the Informant, Mr Grimstone submitted it was the RIU’s contention that Mr Lynch did administer Scanda, a product containing Levamisole within 24 hours of THS SKY ROX racing on all three occasions. He referred the Committee to the evidence of Dr Grierson which he submitted provides compelling scientific evidence in support of this.

[45] Mr Grimstone referred the Committee to the Appeal decision AR Beck v RIU of 11 April 2012. He submitted that this decision clarified the issue of a horse being entered to race, relevant to the administration of a prohibited substance. In that regard he said that Mr Lynch acknowledged that his horse was nominated to race on the Monday preceding the Friday race night race meeting.

[46] Mr Grimstone submitted that the issue raised by the Defendant concerning his diary had little or no relevance. He said that Mr Lynch was first made aware of the allegations on 14 July 2015 and he subsequently produced his diary for inspection on 31 July 2015. And in addition Mr Lynch on his own admission acknowledged that he did not keep good records.

[47] Mr Grimstone submitted that Mr Lynch’s explanation regarding possible contamination through rejection of the substance was fanciful and contrary to Dr Grierson’s evidence. He also, submitted that it was a questionable practice for an experienced horseman like Mr Lynch to administer a substance in the manner he described without ensuring it was ingested.

[48] Mr Grimstone submitted that Mr Lynch provided various explanations as to when he administered the product - ranging from 20 to 14 days; to the Sunday prior to his horse being presented to race on the Friday night. He said the RIU questions the reliability of this evidence and submits it is highly unreliable and has been manufactured by Mr Lynch to suit his current predicament.

Summing Up the case for the Defendant:

[49] In summing up Mr Lynch submitted that he had nothing further to add.

DECISION AND REASONS

[50] In accordance with rule 1008A, and 5th Schedule No 31, the required standard of proof is on the “balance of probabilities”, which simply means more probable or not. The onus of proof rests with the Informant.

[51] The three charges allege breaches of rule 1001(1)(q). In order for the Informant to prove those charges the Committee must be satisfied that on the dates specified in the charging document, the Defendant, being the Trainer of THIS SKY ROX, did administer a prohibited substance and present THIS SKY ROX at a racecource for the purpose of engaging in a race.

[52] The Committee having carefully considered all of the documentary evidence and that given viva voce find the following elements of the charges proven:

a) That the Defendant, Mr Lynch is a Licensed Trainer and he is the Trainer and part –owner of THIS SKY ROX.

b) That on the 3 dates relevant to each charge, namely on or about 12 June 2015, 19 June 2015 and 10 July 2015 THIS SKY ROX was taken to a racecourse, namely Alexandra Park for the purpose of engaging in a race.

c) That THIS SKY ROX was presented to race after having been administered a prohibited substance, namely Aminorex

d) That Aminorex is a stimulant (as set out in the HRNZ Prohibited Substance Regulations).

[53] The Committee has noted the requirements of Rule 1004 which provides that: (1) For the purpose of this rule a horse is presented for a race during the period commencing at 8.00 a.m. on the day of the race for which the horse is nominated and ending at the time it leaves the racecourse after the running of that race, and (1A) A horse shall be presented for a race free of prohibited substances.

[54] It was the Defendant’s evidence that he did administer the Scanda to THIS SKY ROX on each of the Sundays prior to racing on Friday night. He also told Racing Investigators when interviewed various timelines from 20, 14 and 5 days. And his diary referred to the 5th, 6th and 7th of June:”Tonic 20mls”, but contained no other entries of material relevance.

[55] The Defendant also stated in his evidence that THIS SKY ROX was nominated to race on each of the three occasions on the following Monday.

[56] The Defendant has acknowledged Scanda contained Levamisole and Aminorex. He proposed that it was possible after administering the product to his horse within what he believed to be the withholding period (i.e. on Sunday), some the dose may have dribbled onto feed, water bins or hay. He suggested as a consequence, his horse could have subsequently been contaminated prior to racing as a result thereof. The Defendant further submitted that this scenario might have occurred on three occasions relative to the charges.

[57] The Defendant acknowledged that he did not see THIS SKY ROX reject or dribble any of the product.

[58] The Committee balanced the Defendant’s suggestion of possible contamination against the evidence Dr Grierson. Dr Grierson stated that for a horse to return a positive to both Levamisole and Aminorex it is most likely to have been administered within 24 hours of testing. Dr Grierson added that the 4.2 day withholding period for Aminorex (from Levamisole) is set by the New Zealand Equine Veterinary Association. And the 4.2 days is an indicator or guide for anyone using the product for therapeutic purposes. Dr Grierson also stated that the likelihood of contamination as raised by the Defendant was most unlikely, particularly if the reason for rejecting the substance in the first place was because it was unpalatable.

[59] The Committee took particular note of Dr Grierson’s evidence that there have been a number of scientific studies carried out concerning the withholding time and to his knowledge there has never been a positive detection outside the 4.2 day guideline.

[60] In the absence of any direct evidence we reject the Defendant’s proposition that the positive swabs returned by THIS SKY ROX were the result of contamination. There is simply no evidence in support of this proposition. Further, the evidence around whether or not the product was administered on the various Sundays, in our view is unconvincing. The evidence of Dr Grierson was clear, compelling and emphatic that the administrations were “most likely” to have been within 24 hours of THIS SKY ROX being presented to race. Therefore inside the period for which THIS SKY ROX was nominated to race. On this point we accept the evidence of Dr Grierson.

[61] Even if we did consider it likely or even possible that on all three occasions THIS SKY ROX did expel or reject some of the product and as a result was later contaminated, it still does not overcome the fact that irrespective of the circumstances all horses must be presented to race free of prohibited substances. And that onus rests with the Defendant.

[62] Accordingly, the 3 charges are proven; and as a consequence, pursuant to Rule 1004D, any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.

We therefore disqualify THIS SKY ROX and order repayment of all stake money in relation to:

Charge 1

The 12th day of June, 2015, Race 3, The Mid Winter Christmas Trot at the Auckland Trotting Club Inc., race meeting held at the Alexandra Park Racecourse.

Charge 2

The 19th day of June, 2015, Race 3, The Coromandel FM Trot, at the Franklin Trotting Club’s race meeting, held at the Alexandra Park Racecourse.


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: