Non Raceday Inquiry – RIU v CJ Fisher/LS Faber/DT McRae – decision dated 14 July 2014

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decisiondate: 03/07/2014

hearing_title: Non Raceday Inquiry - RIU v CJ Fisher/LS Faber/DT McRae - decision dated 14 July 2014

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appealdecision: NO LINKED APPEAL DECISION

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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 CALVIN JOHN FISHER, DONALD THOMAS MCRAE and LENNARD SYDNEY FABER

DEFENDANTS

Judicial Committee: Murray McKechnie, Chairman and Professor Geoff Hall
Counsel: Mr Mike Colson and Mr Hugh McCaffrey, counsel for RIU - Ms Mary-Jane Thomas, counsel for Messrs Fisher, McRae & Faber

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE DATED THIS 14 DAY OF JULY 2014

1. NATURE OF PROCEEDINGS AND COURSE OF HEARING
1.1 In respect of Messrs Fisher and McRae it is alleged that they breached Rule 801(1)(n)in that they attempted to cause to be administered to a horse a prohibited substance namely erythropoietin (EPO) a prohibited substance as set out in paragraph 6 of the 4th appendix to the Rules of Racing or in the alternative that they breached Rule 801(1)(s)(i) in that they did permitted or suffered an act or acts deemed to be detrimental to the interests of racing.

1.2 It is alleged against Mr Faber, a Licensed Trainer, that he breached Rule 801(1)(s)(i) in that he did, permitted or suffered an act or acts deemed to be detrimental to the interests of racing.

1.3 There was a hearing at Riccarton Racecourse on the 15th April this year. At the commencement of the hearing Ms Thomas, Counsel for Mr McRae entered a plea of guilty to the charge under Rule 801(1)(s)(i). That plea was accepted. Mr Colson was granted leave to withdraw the charge against Mr McRae under Rule 801(1)(n).

1.4 Ms Thomas put before the Committee a medical certificate which established that Mr McRae was seriously unwell and unable to attend the hearing. That was not contested by Mr Colson. It was Mr McRae’s serious ill health and the treatment which he has received for that which provided the genesis of these proceedings.

1.5 Following the hearing in Christchurch the evidence which had been recorded was transcribed and made available to counsel. Extensive submissions were filed on behalf of both the Informant and the Defendants Messrs Fisher and Faber.

2. OUTLINE OF THE CASE FOR THE RIU
2.1 A vial of EPO was found in Mr Faber’s Ashburton stables by RIU officers on the 20th September 2013. That vial came from Mr Fisher. He had been given the vial by Mr McRae who uses EPO in the course of his medical treatment.

2.2 In or about July of 2013 Mr McRae and Mr Fisher were in conversation. Mr McRae lives in Invercargill and attends Dunedin hospital for outpatient treatment. He often stayed with Mr Fisher at his Saddle Hill address. Following conversation between the two men the vial of EPO was given to Mr Fisher.

2.3 At some later date Mr Fisher, when visiting Mr Faber, passed the vial to him.

2.4 On the 19th September 2013 Dr John Beeman, an experienced equine veterinarian, visited the Faber stables. This was to administer pre-race medication to horses that were to take part in an upcoming race meeting. In the course of that visit Mr Faber and Dr Beeman had an extended discussion about the contents of the vial. It was shown to Dr Beeman. Mr Faber retained possession of it.

2.5 Following his visit to Mr Faber’s stable Dr Beeman contacted a Stipendiary Steward and the RIU commenced an investigation.

2.6 Mr Colson put before the Committee a letter from Dr Andrew Grierson the Chief Veterinarian for New Zealand Thoroughbred Racing. That letter concluded with the following paragraph:
Internationally the Prohibited Substance Erythropoietin or EP has the highest possible classification of a Class 1 drug. Controlling bodies worldwide view any trainer found in possession of EPO have committed a grave offence.
Dr Grierson’s advice was not challenged.

2.7 It is the Defendant’s state of knowledge which is central to the determination of these proceedings. The RIU contends that Mr Fisher gave the vial to Mr Faber in circumstances that constitute an attempt to administer the Prohibited Substance. As to Messrs Fisher and Faber’s position under Rule 801(1)(s)(i) it is contended that the manner in which they came into possession of and retained the vial of EPO together with the consequences which followed constitute conduct detrimental to the interests of racing. As to what form of conduct has been considered as detrimental to racing more will be said following a review of the evidence.

3. OUTLINE OF THE POSITION OF THE DEFENDANTS
3.1 With respect to Mr Faber it is said:

(a) The information laid by the RIU does not allege knowledge on the part of Mr Faber and therefore does not allege what act or acts were detrimental to the Racing Industry. It is further submitted that the RIU should not be permitted to enlarge the particulars in support of this information. It is submitted this was done after the close of evidence to include an allegation of knowledge.

(b) In any event the evidence establishes that Mr Faber did not know that the vial contained EPO or a prohibited substance.

(c) That the case for the RIU is an inappropriate extension of the prohibited substance offence (Counsel’s emphasis). That Rule is 804(4) and is in these terms:

A person shall not have in his or her possession on a Racecourse or similar racing facility, where a Race Meeting is being conducted or trials to which the Third Appendix hereto applies, a Prohibited Substance, syringe, needle, device or other instrument which could be used to administer a Prohibited Substance to a horse unless that person shall have first obtained the permission of the Stipendiary Steward or Investigator to be in possession or satisfied them that such possession is for his lawful use.

3.2 With respect to the allegation that Mr Fisher attempted to cause the administration of EPO to a horse it is said as follows:

(a) His actions did not amount to an attempt,

(b) Such action that he took amounted to preparation and was too remote from any action or conduct that might point to an attempt to administer EPO.

(c) That he did not know the vial contained EPO.

3.3 For Mr McRae it is said:

(a) That the vial of EPO was given to Mr Fisher for the treatment of a horse that was spelling. Mr McRae knew that the substance was EPO and that it was a banned substance. It is said on Mr McRae’s behalf that knowing the nature of the substance and that it was banned was the basis for his guilty plea.

(b) It is submitted that Mr McRae’s guilty plea in no way inhibits the Committee’s ability to reach not guilty decisions in respect of Messrs Faber and Fisher.

4. OVERALL FACTUAL SETTING
4.1 The timing and location of certain events are not in dispute. What was said and understood, not said or not properly understood on those occasions is at issue. It is helpful to outline the events and circumstances that are not the subject of any material dispute.

4.2 At the relevant time Mr McRae was resident in Invercargill. He has been involved in harness racing for many years and was registered as a licensed trainer until 2011. He suffers elective renal sympathetic denervation, type 2 diabetes and had his right foot amputated in December 2013. He receives dialysis. As noted earlier he regularly attends Dunedin hospital for treatment. When doing so he stayed with Mr Fisher.

4.3 Mr Fisher resides at Saddle Hill Road, Dunedin. He owns a number of race horses and at the relevant time had horses in the stable of Mr Faber at Ashburton. Mr Fisher acknowledged that he had been given the vial by Mr McRae, taken it to Ashburton and given it to Mr Faber. He said he made no enquiries with any vet during the time the vial was in his possession.

4.4 On the 19th September 2013 Dr Beeman visited the stables of Mr Faber. This was to administer pre-race injections to two horses Force Majeure and The Hand of Faith. There was an extended conversation between Mr Faber and Dr Beeman. Precisely what was said is disputed.

4.5 When the RIU investigators spoke with Mr Faber on the 20th September 2013 the vial was in his car. He made it available to the inspectors. More will be said of that later. It was tested by the New Zealand Racing Laboratory Services (NZRLS) and was found to contain EPO. Samples were taken from other horses in Mr Faber’s stable. No EPO was found by the NZRLS in any of those samples.

4.6 EOP is a Prohibited Substance of the type set out in paragraph 6 of the Fourth Schedule to the Rules of Racing.

4.7 As a result of the vial being found on the 20th September 2013 the Judicial Control Authority ordered the scratching of four horses from Mr Faber’s stable which had been scheduled to race at Riccarton on the following Saturday the 21st September and at the South Canterbury Racing Club meeting on Monday 23rd September 2013. The finding of the substance EPO in the Faber stables and the scratching of the horses at the upcoming race meetings attracted national media interest. The decision of the Judicial Committee ordering the scratching of the four horses was made available to this Committee. So too extracts from the media coverage which took place.

5. ANALYSIS OF RELEVANT EVIDENCE FOR THE RIU
5.1 Dr Beeman gave evidence of his visit to the Faber stables on the 19th September and being present during an interview between the RIU investigators and Mr Faber on the morning of the 20th September. A written brief of Dr Beeman’s evidence was made available in advance of the hearing. The witness was not challenged in cross-examination about the accuracy of what he recounted was said to him by Mr Faber. In the light of what Mr Faber said when he came to give evidence that was regrettable. While this Committee is not bound by the Rules of Evidence which govern the conduct of criminal and civil proceedings in New Zealand Courts it is nonetheless appropriate to refer to section 92 of the Evidence Act 2006. That section sets out the duties of counsel in cross-examination. The Committee is conscious that compliance with the obligation to put matters at issue to a witness in cross-examination can only occur if counsel is adequately and accurately instructed by the client or the witness, as the case maybe, who will take issue with what has been said by the earlier witness in his or her evidence.

5.2 In recounting the events of the 19th and 20th September 2013 Dr Beeman gave evidence of a number of things said which are relevant to the determination of credibility and to establish what was Mr Faber’s true knowledge in respect of the vial and its contents. The significant matters are these:

(i) Mr Faber initiated conversation about a drug he had been given which he said was prescribed by a veterinarian – emphasis added.

(ii) Mr Faber told Dr Beeman that the drug “supposed to make them (the horses) go faster.” Mr Faber then went on to say that he was not prepared to use the drug unless he knew what it was or that it was safe to administer.

(iii) Mr Faber asked a number of questions including what kind of racing advantage the substance might provide. Dr Beeman recounted that he said that if it was EPO, in basic terms, it would produce more red blood cells in the body (circulation) that would mean better ability to carry oxygen to tissues improving performance and reducing fatigue.

(iv) Dr Beeman told Mr Faber that EPO was the drug that Lance Armstrong and many disgraced Tour de France cyclists had taken to boost their performance. Dr Beeman deposed that Mr Faber responded by saying “that was exactly what I was told when given the drug that it was what cyclists in the Tour de France used and it couldn’t be detected”.

(v) Dr Beeman recounted that he pressed Mr Faber regarding the origin of the vial and was again told it was given to him by a veterinarian. Mr Faber was interviewed by Mr Scott and Mrs Williams the RIU investigators on the morning of the 20th of September and again in the afternoon. The transcript the first interview records his being asked from whom he had got the vial. He replied “Oh it’s just an owner of a horse”. A few moments later he was asked if he knew where that person got the vial from. Mr Faber replied “No I have got no idea and I didn’t want to ask him”. At the second interview on the afternoon of the 20th of September Mr Faber eventually identified Mr Fisher as the person who had given the vial to him. These accounts at interview on the 20th of September 2013 contradicted Mr Faber’s account to Dr Beeman the previous day when he had claimed that the vial had come from a veterinarian. Although Dr Beeman’s evidence does not directly depose to what was said at the interviews with Mr Faber on the 20th of September the transcripts of those interviews make plain that Mr Faber gave accounts as to how vial came into his possession which were different from what he had told Dr Beeman the previous day.

5.3 Mr Robin Scott is a Racecourse Investigator employed by the RIU. He was the RIU official principally responsible for the investigation which leads to the charges being preferred against Messrs Faber, Fisher and McRae. Mr Scott was present at both the interviews with Mr Faber on the 20th of September 2013. With reference to those interviews the RIU emphasises the following matters:

(i) At the interview on the morning of the 20th of September Dr Beeman told Mr Faber that his research had established that the substance was EPO. Mr Faber was asked if he had medication on his property. He replied that he did not and said “No it’s just all within the Rules”: p2 of RIU bundle. Sometime later Mr Faber again asserted that he had no drugs other those which had been provided to him by Dr Beeman. He was then asked if he had the substance still in his possession. He replied “No it’s not here”. He was asked again and said “It’s not here.” He was then asked by Mrs Williams one of the RIU investigators “Is it not on the property?” Mr Faber replied No”. After some further discussion he was asked by Mrs Williams “Have you still got it?” Mr Faber then replied “It’s in my car”: see p6 RIU bundle.

Questions were then asked of Mr Faber as to where the vial had come from. What was said is set out in paragraph 5.2(v) above.

(ii) Later in the interview on the morning of the 20th of September the following exchange took place between Mr Faber, Mr Scott and Dr Beeman: p11 RIU bundle.
Mr Scott – Yeah. Because that’s it’s like, EPO canine, EPO equine
Mr Faber – Well, the first thing I said to him was
Mr Scott – The first thing is ….
Mr Faber – I thought EPO was a growth hormone and I asked him was it like that
Dr Beeman – It is a type of hormone, okay, but it is a hormone that produces, or tells the body and the kidneys to produce red blood cells in the bone marrow.
Mr Scott – What about, are we moving into the categories of Lance Armstrong type stuff or is it?
Dr Beeman – Yes.
Mr Scott – It is
Mr Faber – Well see it’s funny you say Lance Armstrong because that’s the first thing I said to him is they told me that the bike riders use it.
Mr Scott – EPO was Lance Armstrong’s middle name
Mr Faber – Right oh

(iii) Sometime later in the interview the following exchange took place: p13 RIU bundle;
Mrs Williams – And he gave it to you about a month ago?
Mr Faber – Oh probably two
Mrs Williams – Two months ago
Mr Faber –Yeah
Mrs Williams – And that was the only one he’s given you?
Mr Faber – Yeap, it’s the only one.
Mrs Williams – Does he have horses with other trainers.
Mr Faber – Yes he has. I don’t want to say his name.
Mrs Williams – No
Mr Faber – No
Mrs Williams – Okay so he has horses with other trainers.
Mr Faber – And cause, like I said I’ve never used anything. I wasn’t sure of it; I would never use it without finding out so I asked Glenn last night. And Glenn didn’t know so he researched it. And all I’ve been told is all the leading trainers that are winning all these good races that’s what they’re using. So it might even help you blokes to.

(iv) In the second interview with Mr Faber which took place on the afternoon of the 20th of September Mr Scott asked “What happens next, is because what you have said to us this morning, you are led to believe that the substance is undetectable”? Mr Faber replied “Well that’s just what I was informed, yeah”:p.18 RIU Bundle

(v) In his oral evidence Mr Faber maintained that he first heard of the substance being linked to cyclists or Lance Armstrong when spoken to on the morning of the 20th of September. This is contradicted by his own account at page 11 of the transcript quoted above sub para (ii). There Mr Faber is recorded as saying” Well see it is funny you say Lance Armstrong because that is the first thing I said to him is they told me that the bike riders use it”.

The Committee is satisfied that Mr Faber was referring to his conversation with Dr Beeman on the 19th of September and that when he said “they told me that the bike riders use it” he must have been referring to the person who had supplied the vial to him. Moreover this comment by Mr Faber is consistent with what Mr McRae recounts in his statement as having been discussed with Mr Fisher.

5.4 The transcript of the evidence records an exchange between counsel for the RIU, the Chairman of the Committee and Mr Faber. It is as follows:
Mr Colson – So you’ve got a substance that’s not detectable, if it’s meant to help the leading trainers who are using it, and helps them, why didn’t you approach a vet immediately, Mr Faber?
Mr Faber – Well because I didn’t even intend on using it. The horse come right and just like I said it sat there for so long I forgot about it.
Mr Colson – Why didn’t you destroy it?
Mr Faber – I can’t even answer that question. What if it wasn’t legal, what if it was something that they’re using and that is legal to use?
Mr McKechnie – Mr Faber, you’ve acknowledged to Mr Colson that you were told, indeed it’s in the transcript, I’ve been told is that all trainers are winning all these good races, that’s why they’re using. It doesn’t say that’s why they’re using it but I’m sure that’s what it’s meant to convey. And then a page or two later in the interview you say “that’s what I was just saying, apparently that doesn’t prove positive”. Now my question to you is this if you were given this substance and it now seems clear you were told that all the big trainers were using it to win races and it doesn’t prove positive, why did you want to have anything to do with it?
Mr Faber – Because I didn’t know what it was. So that’s why I took it to the vet for clarification to ask him.
Mr McKechnie – But having been told, as we now know, that all the big trainers were using it to win races and it didn’t prove positive, wouldn’t that have made you suspicious that there was something about it that wasn’t kosher?
Mr Faber – Well you get suspicious but they can afford things that ordinary trainers can’t afford and there might be something that’s a natural herb, it could be anything that helps.
Mr McKechnie – So possession of the information right or wrong that it was being used by all the big trainers to win races and it couldn’t test positive, you did nothing for 6 to 8 weeks.
Mr Faber – No, because the horse come right, I didn’t need to use or even find out about it to use it, so it just sat there. And because he was turning up at my stables, if he hadn’t turned up at my stables that day, it would still be sitting there now. That’s what I’m saying. Because he turned up, I thought right I’ll find out what this is.
Mr McKechnie – What I’m trying to establish is that did it not occur to you having been told that it was being used in this way that there might be something dodgy about it and that you
Mr Faber – Well it’s always in the back of your mind

5.5 Mr Scott and Mrs Williams interviewed Mr Fisher at Riccarton Racecourse at 4.15p.m on the afternoon of the 20th of September 2013. Mr Fisher had travelled to Christchurch for the race meeting that was to take place the following day. Relevant passages of the transcripts are the following: p.40& 41 of RIU Bundle:

(i) Mr Fisher – But we were just sitting there talking crap and there must have been something come up on the TV, I think there was a cycle race on TV and we started talking about Lance Armstrong and stuff, and he said to me how he, how, this longevity and stuff. And oh he started talking about all the guys on bikes and crap, we weren’t even thinking about horses. And we started talking about water based, I just started talking about horses in general, and he just said to me, this bloody stuff is what it is. And I said, tell you what, I should talk to a bloody vet some time and find out because every time I’ve tried to use a hormone I’ve been reluctant but this little bugger, Dragons Glory is such a weak bastard, I paid a thousand dollars for him, if he can’t go I won’t be bothered with it. So my thoughts were and this is what my thoughts were, that I’d talk to a vet, see if it was going to help him in the interim, rather than water based solubles because I didn’t know what it would do but I thought it would give him strength or retention or whatever because I wasn’t sure what the hell it was going to do, but I knew it would give sustained performance. And so I said to Lenny look, and I said to Donny give me one of those vials. Because he regularly, I think injects three times a week. And it was in the bloody car, I was talking to Lenny, I don’t, and it may have been a week or so after Donny gave it to me, I was coming through Ashburton. I said look Lenny I said chuck this in your car because I’m going to talk to a vet about this because if we can use this to enhance this horse in terms of its overall bloody effort, I’d talk to him about it.

(ii) Further at p.41 of RUI Bundle:
Mr Fisher – It was more of a bloody last resort on this bloody horse, never thinking about race day enhancement, it was more to do with if I could give him a bloody boost and it was off the list and it was okay I’d look at using something like that. But I really wasn’t in my league; you know I didn’t know what I was talking about. But I’ve always been fascinated about oxygen retention, you know that capacity in terms of, like I’ve researched stuff like bloody beetroot and stuff like that, you know beetroot juice and shit like that too.

(iii) At p 45 & 46 of RIU Bundle:

Mr Fisher – We were talking about, yeah I asked him for it. I said let’s, I’ll try this, I’ll muck around with this bloody horse to see what it does you know, ‘cause if it strengths him up and it’s not a problem in terms of he’s clear, I’ll bloody well, I’ll put him back into work. But I put him back into work anyway, and thought, didn’t even think about it and he subsequently come out and won a race.

Mrs Williams – Donny McRae didn’t offer it to you?

Mr Fisher – No no no. We were talking about it and he he he, it was just ‘cause the cyclist stuff was on the sports channel.

Mrs Williams – And he thought that he was on the same stuff that they used, through his treatment?

Mr Fisher – Well he didn’t tell me he was, he said I take stuff that, we were talking about Lance Armstrong you know and I said, and he said I’m on the same sort of stuff as that guy I think, you know, he offered the conversation. But we weren’t talking horses at that stage; I’m the one who started talking bloody horses:

(iv) At p.51 of the RIU Bundle:
Mrs Williams – So basically you’ve given it to your trainer Mr Faber to take enquiries about it.

Mr Fisher – I think my comments were, I pulled up outside the house about 10 o’clock, which I own that Lenny’s in, we’re going to do it up. And I said Lenny chuck this in your glove-box, I’m going to talk to a vet and see if this will help that bloody horse ‘cause I’m over him. That, that was like the context of the conversation. I’m just over the little bugger. I offered it to Russell McKay, because the daughters kept wanting to come and do track work for us.

5.6 On the 26th of September Mr Scott interviewed Mr McRae at his home in Invercargill. The relevant passage of the interview is as follows: p.63 of RIU Bundle;

Mr Scott – Last Friday we had occasion to visit a stable in Ashburton, trainer’s premises Mr Lenny Faber, were we found a syringe of EPO. And as a result of our enquiries we believe that you might be able to assist us with the origin of this syringe. Could you just tell us what your involvement was with Mr Calvin Fisher, and if you know Mr Lenny Faber.

Mr McRae – Yea, I was having a few drinks with Calvin, Lenny Faber was not there at all. And we were talking about Lance Armstrong and different things and Calvin had asked me to have a look at one of his horses Dragon, I think it was Dragon’s Pride. And I said to him I said well it doesn’t look too good to me, through being a horseman, and I said, we were joking and I said well I’ve got some EPO here, it’s out of date for me to use. And I think it would be a 2000 vial or a 4000 vial, because I get different vials. I’m on a 6000 now so. It was out of date; it was probably 6 to 10 weeks ago, that this took place at Calvin’s place. I understood to be turned out, and spelled. And I said to him, I said well inject it into it now and get a blood test on the horse. And see how it works. And that’s where it was sorta left at.

5.7 The RIU also relies upon what are said to be inconsistences and contradictions in the evidence given by Messrs Faber and Fisher at the hearing on the 15th of April this year. These matters will be addressed when analysing the positions adopted for Messrs Faber and Fisher.

5.8 In summary, and following a resolution of the preliminary issue dealt with in paragraph 6 which follows Counsel for the RIU pointed to the following:

(i) Mr Faber accepted a vial without knowing what it contained.

(ii) At the time of receiving the vial or sometime thereafter he was told that it was supposed to enhance horses, build them up and make them run faster.

(iii) Mr Faber was told by Mr Fisher that big trainers in Christchurch were using the substance.

(iv) Further Mr Faber was told that the substance did not swab and did not test positive.

(v) That as a result of conversations with Mr Fisher Mr Faber knew that the vial contained what bike riders had used and that there had been reference to the infamous Lance Armstrong.

(vi) That Mr Faber was clearly dubious about the contents of the vial.

(vii) That he misled Dr Beeman as to how he had come by the vial.

(viii) That when asked on the afternoon of the 20th September whether he had any other medication on his premises he initially maintained that there was none but then, after some time recovered the vial from his car.

(ix) That the vial was in Mr Faber’s possession, at his training establishment for many weeks.

(x) That for the many weeks while the vial was in his possession Mr Faber made no enquiry as to its contents.

6. MR FABER: PRELIMINARY ISSUE
6.1 An issue has arisen as to how the Informant advanced its case against Mr Faber and whether there was an unacceptable change in the allegations advanced against him.

6.2 In the submissions filed for the RIU post the hearing it was said at para 3.31(b)(i) that Mr Faber knew or understood that the substance in the vial was EPO.

6.3 Ms Thomas in her submissions filed in response took issue with the position of the RIU. She submitted that the Informant’s counsel had at the hearing advanced the case on the basis that Mr Faber did not have precise knowledge of what substance was in the vial. Miss Thomas pointed out that she had conducted the case on the basis that she understood that there was no allegation that Mr Faber knew what the substance was. This she contended

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