Non Raceday Inquiry RIU v B G Mitchell – Reserved Decision dated 4 April 2016 – Chair, Mrs N Moffatt

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decisiondate: 05/04/2016

hearing_title: Non Raceday Inquiry RIU v B G Mitchell - Reserved Decision dated 4 April 2016 - Chair, Mrs N Moffatt

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BEFORE A Judicial Committee at Wanganui – Information A4178

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT

Simon Andrew Irving, Investigator

Informant

AND

Bernard Geoffrey Mitchell

Licensed Trainer, GRNZ

Respondent

Judicial Committee: Mrs N Moffatt, (Chairman) - Mr T Bird (Committee Member)

Appearing: Mr Simon Irving (Informant) – Mr B Mitchell (as the Respondent)

Venue: Wanganui Racecourse

Date of Hearing: 31st March 2016

Date of Written Decision: 4 April 2016

RESERVED DECISION OF JUDICIAL COMMITTEE

Mr Mitchell, a licensed Greyhound Owner/Trainer, is charged with breaches of Rules 86.1 and 86.3 of the Rules of Greyhound Racing.

Rule 86.1 reads as follows:

The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance.

Rule 86.3 reads as follows:

Without limiting any of the provisions of these rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence.

Information no: A4178 alleges:

On the 25th January 2016 Bernard Geoffrey Mitchell, licensed trainer and person in charge of the greyhound, presented TUFF DIAMOND for and raced in Race 7 at the Palmerston North Greyhound Racing Club meeting at Manawatu Raceway, failed to present the said greyhound free of the Category 5 Prohibited Substance Ibuprofen, being an offence under the provisions of Rules 86.1 and 86.3 and punishable pursuant to Rule 88.1 and 86.4 of the New Zealand Greyhound Racing Association Rules.

The charge was admitted and is therefore deemed to be proved.

Mr Irving, Racing Investigator for the RIU produced to the hearing the following exhibits:

• Authority to charge signed by Mr M Godber, General Manager RIU
• Information no: A4178
• Charge Sheet
• Charge Rule and Penalty Provisions
• Service of Information confirmation
• Certificate of Analysis
• RIU Sample Identity Record
• Categories of Prohibited Substances
• Agreed Summary of Facts
• Penalty Submissions
• Race results

Mr Mitchell confirmed that he had received and read all of the documents submitted.

FACTS

1. The respondent Bernard Geoffrey Mitchell is 69 years old and holds an Owner / Trainer Licence under the Rules of Greyhound Racing New Zealand. He has held a Trainer’s licence for many years and currently has five greyhounds in work.

2.Mr Mitchell trains 2yo greyhound ‘Tuff Diamond’ which won Race 7 - the ‘Shakey Jakey At Rocky Ridge C3’ - at the Palmerston North GRC meeting at Manawatu Raceway on the 25th January 2016. ‘Tuff Diamond’ earned gross stake money of $1560.

3. The greyhound was post-race swabbed (#84526) in the presence of Mr Mitchell and he does not contest the swabbing process.

4. On the 11th February the NZ Racing Laboratory Services issued a certificate of analysis detailing the sample positive to the anti-inflammatory drug Ibuprofen.

5. Ibuprofen is a Category 5 prohibited substance per the GRNZ regulations.

6. Mr Mitchell was interviewed at his property near Waitotara on the 17th February and admitted to giving ‘Tuff Diamond’ half a ‘human’ 200mg Ibuprofen tablet for a wrist injury 10 days prior to the race. In explanation he stated that he had sought advice from his vet Malcolm Jansen and therefore believed 10 days to be well within the advisory withholding period.

7. Mr Mitchell had no more 200mg tablets at his home, only a blister pack of 800mg ‘Brufen’ Ibuprofen tablets for arthritis, but was adamant he had not confused the two. A sample of horse meat which comprised daily feed to ‘Tuff Diamond’ was taken from Mr Mitchell’s kennels but tested negative to Ibuprofen.

8. Mr. Mitchell has been involved in the racing industry for 30 years, including a term as the President of the Palmerston North GRC. He has had no previous charges.

Mr Mitchell’s response

Mr Mitchell conceded that it was not normal practice to give Ibuprofen to dogs but since the injury occurred on a Saturday and his vet clinic (40kms away) was closed he thought it would be beneficial for the dog to have an anti-inflammatory. She was in some discomfort and he did not have any veterinary prescribed drugs. He had googled the use of Ibuprofen and believed giving half a 200mg pill would be appropriate.

At this stage Mr Mitchell had not nominated Tuff Diamond for any race; his only concern was for the dog’s welfare. Tuff Diamond responded favourably to the Ibuprofen therefore no further doses were administered. On the Monday (two days later) Mr Mitchell said he phoned his vet, Mr Jansen, and told him of the dose of Ibuprofen he had administered to Tuff Diamond. He sought the vet’s advice on withholding times. Mr Jansen’s reply was that Ibuprofen was not an anti-inflammatory that they would prescribe for the treatment of a greyhound but nevertheless it should be free from the dog’s system within 3 days and a maximum of 5 days. Mr Mitchell said, upon receiving that information, he was confident he could safely race Tuff Diamond ten days following his administration of Ibuprofen.

PENALTY SUBMISSIONS - RIU

1. I believe that an appropriate penalty for this breach is a $4000 fine.

2. Ibuprofen is listed as a Category 5 Prohibited Substance – substances that are registered in New Zealand for Veterinary use and have accepted therapeutic benefits to a greyhound – which commands a starting point of 3 months Disqualification and / or a $4000 fine.

3. I could not find any previous NZ Greyhound cases where Ibuprofen was the source of a positive swab.

4. In support of penalty I refer to two cases of Category 5 breaches:

RIU v T Agent (20.01.2015) – Greyhound positive to Procaine Penicillin injected for medicinal purposes. The penalty imposed was a $3000 fine and disqualification of the dog. This was the first case following the introduction of the new ‘Penalty Starting Points’ on the 01st September 2014.

RIU v TM Patton (6.11.2014) – Greyhound positive to the anti-inflammatory Diclofenac administered through the ‘human’ product Voltaren Emulgel as a rub. The penalty imposed was a $1400 fine and disqualification of the dog. This case was prior to the new penalty system.

5. Under Rule 86.4 ‘Tuff Diamond’ is required to be disqualified from the race.

6. The RIU are seeking no costs.

MITIGATING FACTORS

7. It is acknowledged that Mr. Mitchell has been fully co-operative with the investigation and pleaded guilty to the breach at the first opportunity.

8. Mr Mitchell owns Tuff Diamond with his wife Pauline, registered as the Taradune Partnership. Their loss of stake earnings from the disqualification is $1560.

9. Although careless in his actions Mr Mitchell has acted without intent and has made a regrettable mistake.

10. Mr Mitchell has an exemplary record in the greyhound industry over 30 years and has no previous disciplinary history.

AGGRAVATING FACTORS

11. Mr Mitchell is an experienced greyhound trainer who is well aware of the caution required when using medicine in greyhound racing management.

12. Ibuprofen is a non-steroidal anti-inflammatory medication commonly used in humans as a pain reliever and to reduce fever. Though relatively safe for people, ibuprofen can be toxic for dogs and has a relatively narrow margin of safety, meaning that it is safe for dogs only within a very narrow dosage range.’

(http://www.petmd.com/dog/conditions/poisoning-toxicity/c_dg_ibuprofen_advil_poisoning_in_dogs)

13. When interviewed at his property Mr Mitchell had no more of the 200mg tablets left, of which he stated he had given ‘Tuff Diamond’ a half tablet. Kept in the same location was a blister pack of 800mg ‘Brufen’ Ibuprofen tablets, but when questioned Mr Mitchell stated that they were for arthritis and he was adamant he had not confused the two different strength tablets.

14. When vet Malcolm Jansen was spoken to, he stated that it was possible but he could not recall Mr Mitchell consulting him regarding the use of human Ibuprofen on his greyhounds. If he had, he would have told him not to use them as there is no excretion data or withholding times for that drug. He added that all animal non-steroidal anti-inflammatory drugs have different withholding times eg. Meloxicam 5-6 days; Rimadyl 48hrs. Jansen believed that anyone else at his clinic would have proffered the same advice, not to use Ibuprofen.

15. Although careless in his actions it is inferred that Mr Mitchell is also culpable of ‘mid- level’ negligence, failing to take proper and reasonable care by giving Tuff Diamond human Ibuprofen medicine.

16. Given the mitigating and aggravating factors as listed and the overall circumstances considered in this case, I believe a $4000 fine is an appropriate penalty.

PENALTY SUBMISSIONS - Mr Mitchell

Mr Mitchell read out written penalty submissions and also produced a character reference from a public trainer and former GRNZ stipendiary steward. He told the Committee he had been training greyhounds in excess of 30yrs and had never had a charge of any sort against him. He said he was shocked and embarrassed by the charge but believed he had taken all the necessary steps, before nominating and racing Tuff Diamond, to ensure that she raced free of any substance. Mr Mitchell strongly disputed the possibility that he had not spoken on the phone to Mr Jansen two days after the greyhound had suffered injury, saying his wife was in the room when the call was made. Mr Mitchell was deeply apologetic and urged the Committee to take into account that he had lost the race and the stake money as a result. It was his opinion that a $1000 fine was an appropriate penalty.

DECISION

We have taken, as a starting point, a fine of $4000, in accordance with the published starting point for a Category 5 drug, and have carefully considered all of the submissions put before us.

Mr Mitchell is an experienced trainer of greyhounds and knows the industry well having been involved for over 30 years. It is therefore surprising that he would consider using a human medicine on one of his dogs, and one that would certainly not be recommended by a veterinary surgeon. We find this to be an aggravating factor however, following research on the internet, Mr Mitchell was satisfied that the dose he gave would not be toxic to Tuff Diamond. This indicates to us that he had the welfare of his dog foremost in mind when giving the Ibuprofen and we do not apply any uplift in penalty as a result.

Mr Mitchell then sought further advice from his Vet as to when it would be “safe” to race his dog. He did this on the Monday when the vet clinic opened after the weekend. His wife was present when he phoned and spoke to Mr Jansen. As a result of advice given, Mr Mitchell felt certain that he could safely race Tuff Diamond when he did. Mr Mitchell and Mr Jansen differ on their recollections of this conversation:

When vet Malcolm Jansen was spoken to, he stated that it was possible but he could not recall Mr Mitchell consulting him regarding the use of human Ibuprofen on his greyhounds. If he had, he would have told him not to use them as there is no excretion data or withholding times for that drug. He added that all animal non-steroidal anti-inflammatory drugs have different withholding times eg. Meloxicam 5-6 days; Rimadyl 48hrs. Jansen believed that anyone else at his clinic would have proffered the same advice, not to use Ibuprofen.

The RIU did not pursue the discrepancy in statements between Mr Mitchell and Mr Jansen and without the opportunity to question Mr Jansen we could not be certain of the actual events. What is certain is that Tuff Diamond returned a positive to Ibuprofen ten days after Mr Mitchell admitted administering half a tablet. We have accepted that, in the absence of having any veterinary appropriate drugs, he did this for the welfare of his dog and only after satisfying himself that it would do no harm. Mr Mitchell made a significant effort to secure a withholding time for Ibuprofen to ensure the dog raced drug free but unfortunately there is no scientific data to assist. We place Mr Mitchell’s negligence in the low to mid-range.

Mr Irving drew our attention to two previous cases involving Category 5 drugs and we considered the RIU v T Agent (20.01.2015) to be the most useful. We have taken this into account when assessing penalty.

Mr Mitchell has been involved in the Greyhound Racing industry for more than 30 years, and this is his first charge of any kind, which is a commendable record. The committee gives credit for Mr Mitchell’s admission of the breach, his co-operation with the investigation process and his remorse. We also note the professional way in which Mr Mitchell conducted himself during this inquiry. We are also mindful of the fact that Mr Mitchell will have to refund the winning stake for the race of $1560. Applying these mitigating factors we have allowed a discount of $1000 from our starting point.

PENALTY

Accordingly Mr Mitchell is fined the sum of $3000.

COSTS

The RIU made no application for costs and as the case was heard on a Race day we make no order for JCA costs.

DISQUALIFICATION and STAKES

Rule 86.4 reads:

Any greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that race.

Tuff Diamond is disqualified from first place in the “Shakey Jakey At Rocky Ridge” C3 run at the Manawatu Raceway on 25th January 2016. Stake money paid to Mr Mitchell is to be refunded and re-distributed in accordance with the amended placings which are:

1st - Knuckle Bump (2)
2nd - Opawa Extreme (5)
3rd - Kirkham Jack (4)

Nicki Moffatt          Tony Bird

Chair                      Committee Member

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