Non Raceday Inquiry RIU v B McDonald and T Donaldson – Sentencing Decision dated 13 April 2015

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decisiondate: 02/04/2015

hearing_title: Non Raceday Inquiry RIU v B McDonald and T Donaldson - Sentencing Decision dated 13 April 2015

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred

Rules of Racing

BETWEEN THE RACING INTEGRITY UNIT (RIU)

INFORMANT

AND BRETT McDONALD, Class A Licenced Trainer

FIRST DEFENDANT

AND TANYA DONALDSON, Licenced Stable hand/track work rider

SECOND DEFENDANT 

Judicial Committee: Mr Murray McKechnie, Chairman & Mrs Nicki Moffatt

Counsel: Mr Brian Dickey, Counsel for RIU Mr Tony Ryan, Advocate for Mr McDonald and Ms Donaldson

SENTENCING DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

HEARING 24 MARCH 2015 HAMILTON

DECISION DATED THIS 13 DAY OF APRIL 2015

1. THE NATURE OF THE HEARING
1.1 Four (4) informations were laid against both Mr McDonald and Ms Donaldson. Each information alleged a breach of Rule 801(1)(n)(i) of the New Zealand Thoroughbred Racing Rules. These informations were laid following events at the Ruakaka Trials on 9 December 2014. More will be said of those events later in this decision. The Defendants were each charged that they caused to be administered to four (4) named horses the prohibited substance phenylbutazone for the purposes of effecting the speed, stamina, courage or conduct of the horse with reference to the rule quoted above and thereby became subject to the penalties which might be imposed pursuant to Rule 801(2).

1.2 A telephone conference was convened with counsel on 18 February this year. Mr Ryan on behalf of Mr McDonald and Ms Donaldson entered pleas of guilty to each of the charges that both faced and those pleas were then formally recorded.

1.3 A second telephone conference took place on 11 March this year. At that conference it was explained that there were disputed factual matters and it was agreed that a hearing would be required before the Committee could determine the appropriate penalties to be imposed. A written minute was issued following each telephone conference. That disputed fact hearing took place in Hamilton on 24 March this year. The hearing commenced at 10.00a.m. and concluded at 4.30p.m.

2. MATTERS IN DISPUTE

2.1 There were essentially two (2) areas of dispute or difference about which evidence was heard. These were:

(a) What effect, if any, did the administration of the prohibited substance phenylbutazone have with reference to the events on 9 December 2014 at Ruakaka; and

(b) The explanations put forward by Mr McDonald and Ms Donaldson. This second area arose as a result of statements filed by Mr McDonald and Ms Donaldson post the entry of the guilty pleas on the 18 February this year. This area of difference also had relevance to the respective degrees of culpability of each of the Defendants.

3. OUTLINE OF EVENTS ON THE 9 DECEMBER 2014 AND THE RIU INVESTIGATION

3.1 Mr McDonald is a Class A Licenced Trainer based in Cambridge. He is a former jockey and has been involved with thoroughbred racing all of his adult life. Ms Donaldson is a Licenced Stable Hand/Track Work Rider. She has worked for Mr McDonald for some six (6) years and they are partners in life.

3.2 The evidence established that much of Mr McDonald’s business is in the educating of young horses which are then sold to off-shore purchasers. A decision was taken that five (5) horses from Mr McDonald’s stable would take part in the trials being conducted at Ruakaka on 9 December last. The sixth trial that day was a maiden catch-weight trial over 800 metres. A 3YO gelding by Lucky Unicorn from Lady Francesca trained by Mr McDonald was entered in that trial. The horse was ridden by the apprentice jockey Christopher Dell. Some 300m from the finishing line the horse fell and both front legs were fractured. An injury of this kind is frequently referred to by equine veterinarians as “catastrophic injuries”. Mr Dell was thrown from the horse and hit the track heavily suffering serious head injuries. Emergency services were summoned and Mr Dell was taken to Auckland Hospital by helicopter. He was in a coma for some days and was in intensive care for approximately fourteen (14) days. The horse was euthanised. The trials meeting was abandoned. The euthanised horse was not the subject of a post-mortem examination.

3.3 Blood samples taken from the euthanised horse after the incident were forwarded to the New Zealand Racing Laboratory Services for analysis. That analysis demonstrated a significant amount of phenylbutazone in the horse’s system. That drug is prohibited when horses are presented to race or trial. It is a prescribed animal remedy. It can be issued only by a veterinarian. It is a widely used anti-inflammatory medication.

3.4 Inquiries were commenced by the RIU. These inquiries established that Mr McDonald had taken six (6) horses to the Ruakaka Trials on 9 December. Five (5) were from his stable and another from the stable of a trainer based in the Cambridge district. The informations to which Mr McDonald and Ms Donaldson have pleaded guilty relate to four (4) of the five (5) horses from the McDonald stable. Those horses are the following:

(i) Stravinsky – Zablone 2 year old gelding – Race 1, finished 1st.

(ii) Faltaat – New Height 4 year old stallion – Race 2, finished 4th.

(iii) Lucky Unicorn – Lady Francesca 3 year old gelding – Race 6, did not finish, fell and was euthanised.

(iv) Starcraft - Zago 3 year old gelding – did not race, meeting abandoned.

3.5 On 22 January this year members of the RIU visited the stable of Mr McDonald in Cambridge. Mr McDonald was interviewed. He related that the horse Lucky Unicorn/Lady Francesca had trialled at Cambridge the previous Friday 5 December 2014. After that trial it had been given phenylbutazone by Ms Donaldson. There was further administration of phenylbutazone over the weekend. Mr McDonald said that the dose was 10mls each time. It was administered orally in the form of a paste and done at his direction. Mr McDonald denied having given any horse phenylbutazone on 9 December 2014. Ms Donaldson was interviewed on the same day. She acknowledged administering phenylbutazone to horses in the stable on a regular basis and in particular after they had raced at trials. With reference to the events of 9 December 2014 Ms Donaldson admitted administering 10mls of phenylbutazone to the four (4) horses listed above. She explained that she had endeavoured to administer the substance to a fifth horse from the stable but had not been successful in doing so. When asked why the administration took place she related “they were not going to be home until late so I thought I would give it to them early”. Ms Donaldson related that the administration took place at around 4.30a.m. in the morning of 9 December, shortly before the horses left to travel to Ruakaka. Ms Donaldson did not accompany the horses to the trials. In the course of the interview Ms Donaldson further related that she frequently administered phenylbutazone (known by the abbreviated expression BUTE) at the direction of Mr McDonald. She said that she knew it was a painkiller/anti-inflammatory. She told the interviewers that she understood that BUTE had a ten (10) day withholding period.

3.6 Mr McDonald was reinterviewed. The earlier interview had not been recorded on audio. This was apparently as a result of some inadvertent omission on the part of the interviewers or a failure of the recording device. The second interview was recorded. More detailed reference will be made to this second interview later in this decision.

3.7 The RIU personnel undertook an inspection of the training facility and this revealed five 1 litre containers of phenylbutazone. Four of those were empty and the fifth had been recently opened. There was some discussion concerning the future plans for the horses which had been taken to Ruakaka. Reference was made to the deceased horse, had it finished first or second, being sold to Singapore. Mr McDonald gave oral evidence about this matter at the hearing on 24 March and further reference will be made to that. In relation to the Stravinsky/Zablone horse which had finished first in its trial Mr McDonald is recorded as having said that this horse had been sold to Singapore for $70,000. In his oral evidence on 24 March this year Mr McDonald told the Committee that the sale had not proceeded.

4. THE POSITION OF THE VETERINARIANS

4.1 Dr Andrew Grierson is the Chief Veterinarian of New Zealand Thoroughbred Racing. He is vastly experienced. That experience includes acting as veterinarian at race days and at the running of trials. By letters dated 4 January and 24 February this year he furnished advice to Mr Neil Grimstone the Manager Integrity Assurance RIU with reference to the drug phenylbutazone, the properties it possessed and the likely consequences of the administration of the drug to horses that were to race or take part in trials. These letters were put in evidence. The letters are attached to this decision at Schedule A and Schedule B.

4.2 The view of Dr Grierson is disputed on behalf of Mr McDonald and Ms Donaldson. Mr Ryan furnished a Brief of Evidence from Dr Brian O’Shea a Cambridge veterinary surgeon dated 9 March 2015. The Committee was furnished with a detailed Brief of Evidence from Professor Thomas Tobin. Professor Tobin is based in Kentucky in the United States of America and has extensive equine veterinarian experience over many decades. He is the author of numerous publications.

4.3 Professor Tobin took issue with Dr Grierson. In essence he disputed Dr Grierson’s view that phenylbutazone can mask lameness and asserted that the drug was in no way related to what is known as fatal musculoskeletal injuries (FMI’s). The written opinion of Professor Tobin is too extended to be attached in toto but it is appropriate to quote from relevant passages and to relate the responses which Professor Tobin made to questions asked of him. Arrangements had been made for Professor Tobin to attend the hearing by Skype and in the result there was detailed questioning of him by Mr Dickey, counsel for the RIU and some questions of him by the Committee.

4.4 At paragraph 4 in his written opinion Professor Tobin put the position thus:

The conclusion is clear: overall, in horseracing, FMI rates are driven by the mechanical load on the horse, period, end of story. (The underlining is in Professor Tobin’s advice).

At paragraph 6 under a hearing THE MATTER OF THE BARRIER TRIAL EVENT AT HAND: Professor Tobin set out his views. The paragraph is as follows:

With this message in mind we now look at the current circumstance. This horse went “shin sore” in both shins in training and was withdrawn from training for a period, then came back and trained again and presented as sound. However, one of the lessons from the University of California necropsy program is that there is usually evidence of pre-existing damage at the site of an FMI fracture. Given this history and circumstance I believe that it is a reasonable medical certainty that the FMI involved in the current matter occurred at the site of previous damage and that although the horse had recovered to the point of presenting as sound, there was sufficient pre-existing damage to the cannon bones to account for the acute fractures occurring in both front legs during the Barrier trial, as actually occurred.

I also respectfully note and believe to a reasonable medical certainty that if this horse had been necropsied, as is usually carried out in the US on horses suffering FMI injuries, that the necropsy would show pre-existing damage at the primary fracture site thereby linking the sequence of fractures in this horse to the training history of this horse.

We also respectfully note that a further and possibly highly significant possible contributing factor is that this horse was, in its body type, an unusually heavy horse, which unusual body mass factor is entirely consistent with the above analysis of the relationship between mechanical load and FMI, and consistent with the above described analysis of mechanical load being the primary driving factor in FMIs.

4.5 Dr O’Shea in his written Brief of Evidence related that he has practiced in Cambridge for many years and has a longstanding association with the McDonald stable. The only time that he had attended the 3YO Lucky Unicorn/Lady Francesca horse was when the horse was gelded. At paragraph 7 of his written brief Dr O’Shea recorded:

[7] I am aware that the horse concerned was given bute some 7 hours before the trial, on the day of the trial and in my view, this should not have occurred given that it is a breach of the Rules of Racing, with which I am familiar.

With reference to the role of phenylbutazone Dr O’Shea in paragraphs 8 and 9 set out his views as follows:

[8] There are many possible theories as to why a horse can break a leg whether in a trial or under any other circumstances, but I am of the opinion that the fact that this horse had been given bute some 7 hours earlier, was very unlikely to have had any effect whatsoever in relation to the accident.

[9] The administration of bute can mask lameness but I am informed that the horse has never been lame and was certainly not lame between the trials on the Friday and the trial at Ruakaka

Dr O’Shea put forward an explanation for the fall of the Lucky Unicorn/Lady Francesca horse. In cross examination by Mr Dickey he acknowledged that his view was no more than a possible explanation.

4.6 Such differences of opinion as exist between the veterinarians; in particular Dr Grierson and Professor Tobin are relevant in consequence of the manner in which the mitigation submissions have been advanced for Mr McDonald and Ms Donaldson. Mr Ryan has forcefully contended that the presence of the prohibited substance phenylbutazone was not causative of the fall of the Lucky Unicorn/Lady Francesca gelding and thus not responsible for the death of the horse and the very serious injuries suffered by Mr Dell. In as much as the evidence of Dr Grierson was that horses may be but are not necessarily affected in their race day or trials performance by the presence of phenylbutazone Mr Ryan contended that the evidence of Professor Tobin established that this view was mistaken. He invited the Committee to conclude that the presence of the prohibited substance was not in any way responsible for the catastrophic injuries to the horse and the injuries suffered by Mr Dell. Professor Tobin, in support of his position, put forward detailed statistics from the United States and Australia with relation to the administration of phenylbutazone and how the presence of that substance had or had not related to serious race day injuries to horses. Regrettably there were no statistics from New Zealand. Professor Tobin acknowledged that phenylbutazone is permitted in the United States when horses are racing or trialling. It was clear from his evidence that he believes that the substance should not be prohibited when horses are racing or trialling.

4.7 In 2013 Professor Tobin gave evidence before the Judicial Committee of the Veterinary Council of New Zealand. This was in relation to disciplinary proceedings which had been initiated against an Auckland based equine veterinarian. A detailed decision was issued by the Judicial Committee of the Veterinary Council. That Committee was presided over by Mr B A Corkill QC (now Judge Corkill of the Employment Court). The decision in paragraphs 27.4 makes reference to the evidence of Professor Tobin who was called for the defence. The decision makes clear that the Committee had serious concerns about the impartiality of Professor Tobin. Further that Professor Tobin had made a significant alteration to his prepared evidence. The Committee stated with reference to that evidence as follows:

Professor Tobin’s evidence in its original form was plainly untenable; that should have been evident when it was originally prepared. That he signed a Brief of Evidence containing unreliable and untenable evidence was a matter of concern to the Committee.

Mr Dickey questioned Professor Tobin closely about the findings of the Judicial Committee of the Veterinary Council. Professor Tobin would acknowledge no validity whatever in relation to the criticisms made of him. He sought to persuade this Committee that the criticisms were entirely without foundation. As to the views expressed by Dr Grierson Professor Tobin was dismissive of those.

4.8 Dr Grierson for his part pointed to contemporary studies in Hong Kong between 2006 and 2009 which, while not conclusive, supported the view that racing injury risk assessment had established that horses displaying a mild degree of lameness were statistically seven (7) times more likely to sustain a catastrophic injury than those examined as normal. It is appropriate to draw attention to Professor Tobin’s view that the pre-existing or earlier shin soreness of the subject horse was the primary causative consideration in determining why the injury occurred. In the Committee’s view it follows that if the prohibited substance phenylbutazone masks or disguises such a pre-existing condition then that provides an understandable and appropriate rationale for the drug phenylbutazone being prohibited on occasions when the subject horse is racing or trialling.

4.9 Professor Tobin gave his oral evidence on Skype with a significant degree of animation. Attention is drawn to the extract from paragraph 4 of the Professor’s written opinion set out in paragraph 4.3 above where the author has underlined his conclusion and used the expression “period, end of story”. The use of such forceful and emphatic language in the opinion of an expert witness is not acceptable practice before judicial bodies in New Zealand. This Committee has reached the reluctant but clear view that Professor Tobin was a tendentious and partisan witness. While the Committee acknowledges Professor Tobin’s long experience it is not persuaded that his evidence has established that the fall of the Lucky Unicorn/Lady Francesca 3yr old gelding was without any reference to that horse testing positive for some 10ml of phenylbutazone.

4.10 What might have caused the catastrophic injuries to the Lucky Unicorn/Lady Francesca gelding occupied a good deal of the hearing time on 24 March. It is to be remembered that the Defendants are charged with causing to be administered a prohibited substance to four (4) horses. One of those horses did not start in its trial. As was noted earlier the meeting was abandoned following the sixth event. The Defendants are not charged with causing the death of the Lucky Unicorn/Lady Francesca gelding. Positive proof of the actual cause of a fall following catastrophic injuries to a horse may well be very difficult. Dr Grierson acknowledged as much. Proof of what caused the injuries is not an element of the offences with which the Defendants are charged. Sending horses to race meetings or trials when prohibited substances have been administered constitutes a serious racing offence. The death of the horse and the serious injuries suffered by Mr Dell are aggravating considerations. The anti-inflammatory substance phenylbutazone would not be prohibited on race days or at trials if it were not the case that New Zealand Thoroughbred Racing has been persuaded by a substantial body of veterinary advice that the drug can affect the performance of a horse that is racing or taking part in trials. Phenylbutazone is a prohibited substance in Australia.

5. THE EXPLANATIONS OF MR MCDONALD AND MS DONALDSON

5.1 As related in paragraph 3.5 above Mr McDonald when first interviewed denied having given any horse phenylbutazone on the 9 December 2014. The second interview with Mr McDonald which had taken place after the interview with Ms Donaldson was recorded on audio and played to the Committee. What Mr McDonald said at the second interview differs in some material respects from what he said when first spoken to. At the second interview Mr McDonald said “the horses were given BUTE at my direction”. Mr McDonald was asked what he had said to Ms Donaldson. He replied that he could not recall what he had said to Ms Donaldson. Significantly Mr McDonald is recorded as having said “couldn’t see her taking it upon herself”.

5.2 Mr McDonald gave evidence before the Committee and was cross examined. He acknowledged that the four (4) horses had trialled the previous Friday 5 December 2014 and had been given phenylbutazone after the trials and again over the weekend. He said he thought that at the time the withholding period was seven (7) days. Given that evidence from Mr McDonald it is clear that if there had been no administration of phenylbutazone on the morning of 9 December 2014 these horses would still have been trialling at Ruakaka inside the seven (7) day withholding period which Mr McDonald understood had application. Had one or more of the horses been swabbed on the 9 December 2014 absent the administration of phenylbutazone that morning it is very probable that a positive test would have resulted. Mr McDonald went on to relate that Ms Donaldson had not told him that she had administered the phenylbutazone. At the second interview the following exchange occurred between Mr Grimstone from the RIU who was conducting the interview and Mr McDonald.

Mr Grimstone: Okay, okay, righto. I just want to clarify before we finish that, firstly the animal was given phenylbutazone on the morning of the trial. Yes?

Mr McDonald: Yes.

Mr Grimstone: And at whose direction was that?

Mr McDonald: Well it would have been, it would have been mine.

Mr Grimstone: And what did you say?

Mr McDonald: I cannot recall.

It is difficult to reconcile Mr McDonald’s evidence that Ms Donaldson had not told him of the administration and this explanation to Mr Grimstone. Remarkably Mr McDonald went on to recount in his evidence that Ms Donaldson told him nothing about administering the phenylbutazone until the RIU investigators approached him on 22 January the following year. In answer to questions in cross examination Mr McDonald said that if the administration had been undertaken by Ms Donaldson as she had related then this was the only time she had administered BUTE without him knowing. It was put to Mr McDonald that the real reason for taking the horses to Ruakaka was that some were for sale and that the Lucky Unicorn/Lady Francesca gelding in particular was on its way to Singapore. Mr McDonald said that he was going to retain a half share. He said a client of his stable was to take the other half share and Mr McDonald related that if the horse was successful in Singapore then he would anticipate selling his half share. It was in the course of this questioning about the sale of horses that Mr McDonald said that the proposed sale of the Stravinsky – Zablone 2YO gelding that had finished first in its trial had not proceeded.

5.3 Mr McDonald was referred to the stable diary. This was maintained by Ms Donaldson. Mr McDonald told the Committee that he has limited literary skills. It was pointed out to Mr McDonald that there was no entry on 9 December 2014 for the administration of phenylbutazone to any of the horses. Mr McDonald was unable to explain why that was the case. Other questions were asked about the diary. It is clear to the Committee that the diary was not kept accurately. The evidence from Mr McDonald and Ms Donaldson with reference to the trials on the previous Friday 5 December 2014 was that the administration of phenylbutazone had taken place after the trials. Curiously the diary shows the administration having taken place on the day before the trials the 4 December 2014.

5.4 When asked about his role in what had happened Mr McDonald, to his credit, acknowledged “I am the boss”. That description was adopted by Mr Ryan in his closing submissions.

5.5 Ms Donaldson gave evidence and was cross examined. Some of what she said was of real concern to the Committee. Ms Donaldson said that she had never before administered phenylbutazone to horses that were going to the races or trials. She said that she knew that the drug was not permitted on race days but claimed to be unsure if the prohibition extended to trials. With reference to trials Ms Donaldson made the remark “the horses never get swabbed”. It was unclear if Ms Donaldson was making reference to her apparent uncertainty about phenylbutazone being prohibited at trials or to the circumstance that the swabbing of horses at trials occurs infrequently. In either event the remark quoted has troubled the Committee. First Ms Donaldson should have known of the rule in relation to prohibited substances at trials. Secondly if Ms Donaldson believed there was little or no chance of swabbing to detect a prohibited substance then this demonstrates an intent to act in breach of the prohibited substance rules. She told the Committee that Mr McDonald had absolutely no idea that she had administered phenylbutazone to four (4) horses early on the morning of 9 December 2014. That evidence is not able to be reconciled with what Mr McDonald said at his second interview.

5.6 With reference to events following the trials Ms Donaldson told the Committee “it did not cross my mind to tell him about the BUTE”. Ms Donaldson said that her primary concern was for the injuries suffered by Mr Dell. When pressed about why she had not spoken to Mr McDonald about the administration of phenylbutazone she said “I didn’t even think about it”. And further on the same subject “it didn’t cross my mind to tell him about the BUTE”.

5.7 Ms Donaldson was questioned about the stable diary. She acknowledged that keeping the diary was her responsibility. She was unable to explain why there was no reference to the administration of phenylbutazone on 9 December 2014. Nor could she explain the apparent inaccuracy of the diary in relation to the trialling that had taken place on the 5th December 2014. Mr Dickey in cross examination pointed to other inaccuracies in the diary.

5.8 The Committee finds it very difficult to accept that between 9 December 2014 and 22 January 2015 there was no discussion whatever between Ms Donaldson and Mr McDonald concerning the administration of phenylbutazone to the four (4) horses that were taken to Ruakaka. Neither Ms Donaldson nor Mr McDonald could offer any explanation as to why the diary made no reference to the administration that had taken place on the morning of 9 December 2014. Ms Donaldson told the Committee that the practice in the stable was to administer phenylbutazone when horses returned from trials. When asked why that practice was not followed on 9 December she explained that the horses would not be returning to Cambridge until around 10.30p.m. in the evening and that she might, by that time, have been asleep. She acknowledged that Mr McDonald could have administered the phenylbutazone when the horses returned to Cambridge. The Committee finds it entirely disingenuous that Ms Donaldson’s explanation for administering phenylbutazone before trialling rather than after trialling was because this may have somehow interrupted her domestic timetable.

6. PENALTY SUBMISSIONS FOR RIU

6.1 The RIU submitted that Mr McDonald should be disqualified for a period of five (5) to six (6) years, be required to pay a significant fine in the range of $15,000 to $20,000 and make a contribution towards the costs incurred by the RIU and the JCA. With respect to Ms Donaldson it was proposed that she be disqualified for a period of twelve (12) months, pay a fine and make a contribution towards costs.

6.2 The RIU submitted that there are significant aggravating factors present. These are said to include the following:

(i) The administration of the phenylbutazone was deliberate and four (4) horses were involved.

(ii) That the horses had been treated with phenylbutazone following the trials the preceding Friday and again over the weekend and thus would almost certainly have presented at the trials with a prohibited substance even if there had been no administration of the phenylbutazone on the morning of 9 December 2014.

(iii) That breaches of the relevant rule appeared to be routine in the McDonald stable.

(iv) That the failure to record the administration on the morning of 9 December 2014 was deliberate and that the record keeping in the stable was wholly inadequate.

(v) That the proposed sale of at least two (2) of the horses to overseas buyers gave rise to a financial motivation.

6.3 Mr Dickey drew attention to the decision of the Appeals Tribunal in W v RIU, 10 December 2014. In that

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