Non Raceday Inquiry RIU v CD Edmonds and AD Edmonds – Reserved Decision dated 31 March 2016 – Chair, Mr R McKenzie

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decisiondate: 31/03/2016

hearing_title: Non Raceday Inquiry RIU v CD Edmonds and AD Edmonds - Reserved Decision dated 31 March 2016 - Chair, Mr R McKenzie

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Decision:

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A5022

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND CRAIG DAVID EDMONDS and AIMEE DONNA EDMONDS of Motukarara, Licensed Trainers (Partnership)

Respondents

Date of Hearing: 26 March 2016

Venue: Addington Raceway, Christchurch

Judicial Committee: R G McKenzie (Chair), S C Ching (Committee Member)

Present: Mrs K R Williams, the Informant

Mr C D Edmonds, Respondent

Miss A D Edmonds, Respondent

Mr S P Renault, Stipendiary Steward (Registrar)

Mr John Robinson (representing Manager of goHarness Trotting For Fun Syndicate)

Mr Peter Baken (representing Management Committee of Go Harness Trotting For Fun Syndicate)

Date of Decision: 31 March 2016

RESERVED DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A5004 alleges two breaches of the Rules by the Respondents as follows:

On the 15th January 2016, Craig David Edmonds and Aimee Donna Edmonds, being the registered trainers of the Standardbred HARRIET OF MOT, presented the horse to race in Race 8, Wrightson Yearling Sales - February Mobile Trot, at the New Zealand Metropolitan Trotting Club’s meeting with a prohibited substance, namely Ketoprofen, in its system. This is in breach of the Prohibited Substance Rule, Rule 1004 (1A), (3) and (4).

AND that on the 29th January 2016, Craig David Edmonds and Aimee Donna Edmonds, being the registered trainers of the Standardbred HARRIET OF MOT, presented the horse to race in Race 9, SBSR Glenbrook, G Stalker, Grant Enterprises Handicap Trot at the New Zealand Metropolitan Trotting Club’s meeting with a prohibited substance, namely Ketoprofen, in its system. This is in breach of the Prohibited Substance Rule, Rule 1004 (1A), (3) and (4).

The Rules

[2] Rule 1004 of the Rules of Harness Racing provides as follows:

(1A) A horse shall be presented for a race free of prohibited substances.

(3) Where a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.

(4) A breach of sub-rule (1A), (2), (3) or (3A) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

The Plea

[3] Mr Edmonds and Miss Edmonds had signed the Statement by the Respondent at the foot of the information form indicating that they admitted the breaches of the Rule. They confirmed this at the hearing. The charge was found proved accordingly.

Summary of Facts

[4] Mrs Williams presented the following Summary of Facts: -

1. HARRIET OF MOT is a 4-year-old bay mare and is trained in partnership by Public Trainers, father and daughter, Mr Craig David Edmonds and Miss Aimee Donna Edmonds. HARRIET OF MOT races on lease to the goHarness Trotting For Fun Syndicate. HARRIET OF MOT has raced 16 times for 10 wins and 2 placings and stakes of $77,864 as at 14 March 2016.

2. HARRIET OF MOT was correctly entered and presented to race by co-trainers Mr Craig Edmonds and Miss Aimee Edmonds at the New Zealand Metropolitan Trotting Club’s meeting at Addington Raceway on 15 January 2016. HARRIET OF MOT was driven in Race 8, the WRIGHTSON YEARLING SALES – FEBRUARY MOBILE TROT by Mr J R Dunn, winning the race and a stake of $6,050. This stake has not been paid out.

3. Following the race, the Stipendiary Stewards ordered that HARRIET OF MOT be post-race swabbed. Swabbing Steward, Mr M P McCann, obtained a urine sample from the mare at 9.21pm. The race was programmed to start at 9.03pm. The urine sample was taken in the presence of Miss Edmonds. The urine samples were recorded with the Sample number 114128. Miss Edmonds does not contest the taking of the samples.

4. HARRIET OF MOT was correctly entered and presented to race by co-trainers Mr Craig Edmonds and Miss Aimee Edmonds at the New Zealand Metropolitan Trotting Club’s meeting at Addington Raceway on 29 January 2016. HARRIET OF MOT was driven in Race 9, the SBSR GLENBROOK PARK, G STALKER, GRANT ENTERPRISES HCP TROT by Mr J R Dunn, winning the race and a stake of $6,600. This stake has not been paid out.

5. HARRIET OF MOT was pre-race swabbed with a urine sample taken from the mare at 7.46pm. This sample was taken by swabbing steward, Mr Grant Johnston, in the presence of co-trainer Miss Aimee Edmonds and was recorded with the Sample number 114144. Miss Edmonds does not contest the taking of the samples.

6. On the 2nd February 2016 the New Zealand Racing Laboratory reported Ketoprofen was detected in Sample Number 114128. The Control Sample was clear.

7. On the 9th of February 2016 Racecourse Investigators, Mrs Kylie Williams and Mr Peter Lamb, went to the training establishment of Mr Edmonds and Miss Edmonds, 48 Canal Road, R D 2, Christchurch, and advised them of the positive swab returned by HARRIET OF MOT.

8. Mr Edmonds and Miss Edmonds were given a copy of the Certificate of Analysis, Copy of the Swab Card, RIU Swabbing Record Book, Race Results, Horse details, copy of the Prohibited Substance Rule of the New Zealand Rules of Harness Racing and a letter from Andrew Grierson, Veterinary advisor for HRNZ confirming that Ketoprofen is a prohibited drug under the Rules.

9. Mr Edmonds and Miss Edmonds could not offer an explanation for the presence of Ketoprofen in the urine sample taken from HARRIET OF MOT on the 15th of January 2016 and advised that they had last treated the mare with Ketoprofen after racing at Auckland on 11 December 2015, 35 days prior to the positive swab.

10. Mr Edmonds and Miss Edmonds advised that they took HARRIET OF MOT to the races and both were present at the New Zealand Metropolitan TC meeting on the 15 January 2016.

11. Samples were taken from the premises and forwarded to the Racing Laboratory for testing including a bottle of Kalaprofen 10% “HARRIET” (active ingredient Ketoprofen 100mg/mL), and a sample of Epiitalis Forte.

12. There were three bottles of Kalaprofen on the property. One was labelled HARRIET, one VICENNES and an unopened bottle labelled John Dunn.

13. Ketoprofen has a 4.2 day withholding time. The bottle labelled HARRIET, as supplied by the Rangiora Veterinary Centre, clearly had written on it “4.5 day race W/H”.

14. Mr Edmonds and Miss Edmonds advised that they use Ketoprofen post-race only to assist in the recovery from racing or after a hard run. They are aware that it has a 4.2 day withholding time.

15. Miss Edmonds provided the diary that is used to note all treatments given to their horses. There were no notes of Ketoprofen being administered to HARRIET OF MOT in January.

16. On the 18th February 2016 the New Zealand Racing Laboratory reported Ketoprofen was detected in Sample Number 114144. The Control Sample was clear.

17. On the 19th of February 2016 Mr Edmonds and Miss Edmonds were advised of the second positive swab and they advised that they did not want to get the reserve samples tested. Again they could offer no explanation for the presence of Ketoprofen.

18. On the 28th of February a further sample of Epiitalis Forte, Exhibit 3, was forwarded to the NZ Racing Laboratory for testing.

19. The New Zealand Racing Laboratory advised on the 4th of March 2016 that Ketoprofen was detected only in the bottle of Kelaprofen labelled “Harriet”. Ketoprofen was not detected in the two samples of Epiitalis Forte.

20. Mr Edmonds and Miss Edmonds have been training in partnership since 2013/14 and have had 103 starts for 23 wins, 10 seconds and 8 thirds for nearly $245,000 in stakes. Mr Edmonds had previously held Public Trainer and Licence to Train licences since 1980/81.

21. Mr Edmonds and Miss Edmonds have not previously been charged with a breach of Rule 1004(1A).

[5] Mr & Miss Edmonds told the Committee that they accepted the Informant’s Summary of Facts as presented.

Submissions of Informant on Penalty

[6] Mrs Williams presented the following written penalty submissions: -

1. Mr Edmonds and Miss Edmonds have pleaded guilty to a breach of Rules 1004(1A), (3) and (4) after presenting HARRIET OF MOT at the races on two occasions with a prohibited substance in its system, namely Ketoprofen, at the New Zealand Metropolitan TC race meetings on the 15th and 29th January 2016.

2. The penalty provisions that apply in this case are outlined in Rule 1104(7).

1004(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) a fine not exceeding $20,000; and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

3. The Rules also require the mandatory disqualification of the horse: Rule 1004(8) states:

(8) Any horse connected with a breach of sub-rule (1), (2), or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.

4. Sentencing Principles –

The four principals of sentencing can be summarised briefly: -

• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

• In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offences.

• A penalty should also reflect the disapproval of the J.C.A for the type of behaviour in question.

• The need to rehabilitate the offender should be taken into account.

The first three principles are particularly important here.

5. Relevant Precedents –

In addition to the sentencing principles the Judicial Committee should have regard to relevant precedents.

• NZTR v A D Scott – 22 November 2010
Subject: Ketoprofen positive with a thoroughbred – fined $6,000, costs $750 NZTR, $600 JCA.

• NZTR v K & L Rae – 28 May 2009
Subject: Ketoprofen positive with a thoroughbred – fined $4,000, costs $3,000 NZTR, $500 JCA.

• NZTR v A W Pike & M Donoghue – 22 August 2008
Subject: Ketoprofen positive with a thoroughbred – fined $6,000.

• HRNZ v P T & G P Wolfenden – 31 July 1995
Subject: Ketoprofen positive with a horse – fined $1,000, costs $5,000.

• R.I.U. v J M Whittaker – 17 August 2015

Subject: Caffeine positive with a horse – fined $1,000, costs $1,800. Extract from Whittaker decision: “RIU v L J Justice (2011) where that Committee stated ….. penalties will be imposed for breaches of the rule which will recognise, reinforce and give effect to the pivotal significance of the rule in maintaining the integrity of racing, whether or not culpable conduct is involved. Naturally where culpable conduct is involved, penalties imposed will normally be greater than in cases where such conduct is absent but we think it is wrong and contrary to the intent and purpose of the rule to assume the absence of culpable conduct should attract no, or only a token penalty.”

• R.I.U. v P M Williamson – 10 December 2012

Subject: Procaine positive with a horse – fined $3,500, costs $350 to JCA. The source of the positive swab was not identified. “Against those factors is the ever-present need to maintain the integrity of and public confidence in harness racing by adequately punishing the breach and deterring Mr Williamson and others from offending in a similar manner in the future.”

6. Aggravating Features –

We are dealing with two positive swabs. The race meetings were 14 days apart and Ketoprofen has a 4.2 day withholding time. The first positive swab had not been declared when HARRIET OF MOT returned the second positive.

Mr Edmonds and Miss Edmonds cannot advise how the Ketoprofen came to be in the horse’s system but three bottles were found on the property and they admitted that they had previously treated the horse with the product. One of the bottles was clearly labelled “Harriet”.

Medications are not kept in a locked cupboard at the training premises.

7. Mitigating Factors –

(i) HARRIET OF MOT has tested clear on two occasions since the positive swabs.

(ii) Mr Edmonds and Miss Edmonds admitted the breaches at the first opportunity and have co-operated fully throughout the investigation.

(iii) Mr Edmonds and Miss Edmonds have an unblemished record after holding a Public Trainer’s licence in partnership since 2013/14 and Mr Edmonds since 1980/81. They have had horses start in over 100 races for 23 wins.

8. Conclusion –

The Racing Integrity Unit seeks a monetary penalty of a fine of $8,000.

The reason for this figure is that the JCA guidelines, 1st May 2015, have a starting point of $8,000 for a first offence of presenting a horse with a drug in its system.

In setting penalty for two breaches this committee can take reference from RIU v A L J Lynch, 16 October 2015. Extract: “In RIU v B Towers (15 May 2015), which related to 2 charges where the Defendant Towers failed to present his horse free of the prohibited substance namely Clenbuterol, the Committee in its written decision considered options for determining penalty for multiple charges. The Committee in Towers referred to RIU v McInerney noting that it was submitted to support the submission that when setting a quantum, the Committee could look to set the financial penalty for the second breach at a level which was half that of the original breach. An approach in line with that adopted in McInerney supports the view that to impose a quantum for each breach, albeit resulting from the same on-going action. As with the Beck decision the circumstances of Towers are slightly different to the present case, albeit the discussion on rationale for decision making offers something for this Committee to consider in determining penalty quantum for all 3 charges.”

Both Mr Edmonds and Miss Edmonds have to be given credit for the manner in which they have conducted themselves during this inquiry and admitting the breach at the first opportunity. However, the onus is on trainers at all times to ensure that a horse in their care and control is completely drug-free when presented at the races.

We also seek the disqualification of HARRIET OF MOT under Rule 1004(8).

Respondent’s Penalty Submissions

[7] The Respondents presented written submissions in relation to penalty which addressed the submissions of the Informant. These are summarised hereunder.

[8] It was submitted that a penalty is not set to reflect the disapproval of this Committee for the behaviour in question. It was up to this Committee to “utilise the principle that each penalty should be sufficiently harsh to send a signal that denounces any acts or omissions that breach the Rules and, thereby, have a negative effect on the image or integrity of racing”.

[9] It was further submitted that “penalties must be proportional to the breach being punished. While penalties should contain a deterrent element they should not be excessive or oppressive. If a person is to be penalised for more than one charge arising out of what is essentially a single episode or event, an overall penalty for the episode or event should be determined and the penalties for the individual breaches should be tailored to the individual event”.

[10] The Respondents’ submissions went on the address the “relevant precedents” put to the Committee by the Informant. In addition to those precedents, the Respondents made reference to the following cases:

RIU v C Dalgety – 17 December 2009
Subject: Caffeine positive with a horse Group 1 race – fined $3,500

RIU v Bell & Donaghue – March 2015
Subject: Nordazepam positive – fined $6,000

RIU v G A Lawrence – March 2015
Subject: Morphine – Contamination – 3 Positives. Fined $4,000 (being $2,000 + $1,000 +$1,000) – subsequently reduced on appeal to $2,000.

RIU v S Payne – April 2015
Subject: Procaine positive x 3 – fined $4,500 ($1,500 each) - subsequently reduced on appeal to $3,000 ($2,000 + $500 +$500).

RIU v B Towers – May 2015
Subject: Clenbuterol 2 positives. Fined $4,000 total.

[11] The Respondents referred to the Informant’s submission that an aggravating factor was that medications are not kept in a locked cupboard at the training premises. They asked the Committee to note that this has been rectified but, at the same, expressed their belief that this factor has no relevance as to how the Ketoprofen came to be in the horse’s system.

[12] The Respondents explained that they are unaware as to how the prohibited substance came to be in the horse’s system. They made the following submission in regard to that matter:

“Mr & Miss Edmonds cannot advise how the Ketoprofen came to be in the horse’s system and agree that three bottles of Ketoprofen were found on the property. Of those three bottles, one was unopened. Another was named for another horse (and had been used once on that horse) and another was clearly labelled “Harriet”. Aimee has clear records of when Ketoprofen has been used on HARRIET OF MOT and the last usage was on 11th December 2015.

The only possible way, after considerable investigation, was that a “gel” product was used in the time that this horse received the positive swabs. Aimee began feeding this product on the 16th December 2015 after talking to vet Jack O’Brien and regular vet Sam Taylor who both assured Aimee this product has no withholding time and no potentially swabbable substances.

In light of the fact that this bottle was emptied and disposed of prior to the notification of the swabs we were unable to have the bottle tested – something we would have done. This is, we have concluded, the only possible way that this horse could have been contaminated as it was the only different product used from other campaigns. Therefore, in our mind it is a case of contamination we are unfortunately unable to prove categorically”.

[13] The submissions of the Respondents then made reference to the Penalty Guide starting point of a fine of $8,000. They had this to say –

“We would point out that this is the starting point when some form of negligence or carelessness on behalf of the trainer is evident. There is no evidence in this case of negligence or carelessness – in fact there is no evidence whatsoever as to how this horse became subject to a positive test to this substance. It is accepted that the trainers are however ultimately responsible and that is why we present ourselves here today. We ask that this be taken into consideration when setting penalty”.

[14] The Respondents asked that this Committee give credit for the manner in which they have conducted themselves during the inquiry and admitting the breach at the first opportunity.

[15] The Respondents presented character references from Mr Sam Taylor BVSc, who had attended as Veterinarian to HARRIET OF MOT for the past 18 months, Mr Ivan W McNicholl, an owner and breeder, Mr Patrick Driscoll, an owner and breeder, Mr Edward Rennell, Chief Executive of Harness Racing New Zealand, (dated 24 March 2014 following Miss Edmonds resignation as a HRNZ employee) and Mr D A Senior BVSc, Equine Veterinarian.

[16] The Respondents produced diary records, according to which HARRIET OF MOT was last treated with Ketoprofen after racing at Auckland on 11th December.

[17] Mr & Miss Edmonds explained that Ketoprofen is used strictly as an aid to recovery after a horse has raced, and is never given pre-race. They stated that HARRIET OF MOT was swabbed after winning at Auckland on 4th December 2015.

[18] Miss Edmonds told the Committee that they had used a feed additive on HARRIET OF MOT, which was the only change in the mare’s regime. This product has been tested and shown to contain no Ketoprofen, but the use of this product is the only possible explanation that she and Mr Edmonds can offer for the positive swabs. The actual container of the product had been used and disposed of by the time they were first advised of the positive results. The product had been purchased by Miss Edmonds while she was in Auckland and given to HARRIET OF MOT throughout the relevant period.

[19] The Respondents told the Committee that no Ketoprofen was given to the mare following her races on 15th and 29th January as she had had had relatively easy runs in each of those races.

[20] Mrs Williams said that HARRIET OF MOT had been tested clear on four occasions subsequent to the race on 29th January.

[21] In conclusion, the Respondents made the following submission:

“We are a family business. Craig works as a farrier to supplement the income as the income from training would not be sufficient. Our whole family is heavily involved in racing. Harness racing isn’t just our livelihood it is our whole being. This whole case and situation has had a massive effect on our personal wellbeing as well as tarnishing our family name and reputation. We pride ourselves on our honesty, integrity and competing on an even playing field”.

Reasons for Penalty

[22] The relevant penalty Rule is Rule 1004 (7) which provides:

Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) a fine not exceeding $20,000.00; and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

[23] The starting point for penalty for a breach of the Prohibited Substance Rule is provided in the Penalty Guide for Judicial Committees (effective 1 May 2015). For a first presentation offence, the Penalty Guide starting point is a fine of $8,000. The Penalty Guide provides that “the starting point is just that: movement both above and below this point may (and usually will) occur”.

[24] The Committee is required to take into account aggravating and mitigating factors.

[25] In this case, and as is the case in many other cases of presentation, the source of the prohibited substance, in this case Ketoprofen, cannot be determined. The Respondents admitted that they treated HARRIET OF MOT with Ketoprofen, but strictly post-race, to aid her recovery after racing. Their records stated that the last treatment was after HARRIET OF MOT had raced at Auckland on 11th December 2015.

[26] The Respondents advanced a possible source of contamination – that is to say, a food additive in the form of a gel that was added to the mare’s feed, which additive had been given to her while she was in Auckland and which they continued to give her until the Respondents were informed of the first positive swab on 9th February 2016. They did not have the actual container of the product available for testing but other containers of the product have, we understand, all tested negative for Ketoprofen.

[27] On that basis, we are drawn to the conclusion that that particular product was an unlikely source of the contamination.

[28] Having reached that conclusion, the Committee is not able, on the facts before us, to reach any conclusion as to how the Ketoprofen came to be present in the samples taken from HARRIET OF MOT on 15th and 29th January 2016.

[29] It was clear, however, that Ketoprofen was kept on the Respondents’ training establishment – three bottles were found, included one labelled “Harriet”. Furthermore, the Respondents admitted that the product was not securely locked away and it follows that another person or persons could have gained access to it.

[30] The Committee finds that it was negligent on the part of the Respondents to leave their medication cabinet unlocked and this is an aggravating factor.

[31] The Committee must have regard to the fact that the training partnership of Mr & Miss Edmonds has been charged with two breaches of the Prohibited Substance Rule. We believe that the Penalty Guide starting point refers to a single breach. Having said that, the Committee does accept that it is not appropriate to take a starting point for penalty of $16,000 in this case. We need to apply, we believe, the totality principle to determine the appropriateness of any total penalty.

[32] The Committee accepts that the two charges arise out of, presumably, the same source of contamination, although it is curious that HARRIET OF MOT tested positive on the two occasions, two weeks apart, and we take this into account.

[33] After consideration, the Committee has applied a starting point of a $12,000 fine, arrived at on the basis of $8,000 for the first charge and $4,000 for the second charge. That starting point takes into account the aggravating factor referred to in paragraph [29] above.

[34] From that starting point, it is appropriate that the Respondents receive a discount for certain mitigating factors that were put before us, and which we accept – their admission of the breaches, their cooperation with the RIU during the course of the investigation and the previous good record of both Respondents, in particular the record of Mr Edmonds which extends for almost 30 years. We have also noted the very favourable character references submitted by the Respondents. We have fixed this discount at 25 per cent.

[35] In arriving at the penalty of a fine of $9,000, the Committee has taken into account the need, firstly, to hold the Respondents accountable, secondly, to denounce the offending, and thirdly, to deter the Respondents or other persons from committing the same or a similar offence and, as in every case, the overriding purpose of a Judicial Committee to uphold and maintain the high standards expected of those participating in the industry and to uphold and maintain the integrity of harness racing.

Penalty

[36] The training partnership of Mr C D & Miss A D Edmonds is fined the sum of $9,000.00.

Disqualification of Horse

[37] Following the hearing, the Committee ordered that HARRIET OF MOT be disqualified from the following races, effective from after the close of racing on 26th March 2016: -

(i) New Zealand Metropolitan TC, 15 January 2016, Race 8, PGG Wrightson Yearling Sales – February Mobile Trot. The amended result is as follows:

1st 2 Father Christmas
2nd 3 Clean Break
3rd 8 Wanna Play
4th 1 Fratellino
5th 11 Sundown in Paris

(ii) New Zealand Metropolitan TC, 29 January 2016, Race 9, SBSR Glenbrook Park, G Stalker, Grant Enterprises Limited Handicap Trot. The amended result is as follows:

1st 4 Pyramid Monarch
2nd 2 Kowhai Whiz
3rd 1 All Lit Up
4th 8 Aile Rouge
5th 9 Experiment

In each case, it is ordered that stakes be paid in accordance with the amended results.

Costs

[38] Mrs Williams did not seek any award of costs in favour of the Racing Integrity Unit and, accor

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