Non Raceday Inquiry RIU v G A Cook 19 September 2013 – Decision dated 25 September 2013

hearingid: 0c50b325b16eedeba4d786af56a3d8b3

informantnumber: A5009

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decisiondate: 09/10/2013

hearing_title: Non Raceday Inquiry RIU v G A Cook 19 September 2013 - Decision dated 25 September 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE JUDICIAL COMMITTEE

AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT

Kylie Williams - Racecourse Investigator

Informant

AND GAVIN ANTHONY COOK

- Licence to Train Trainer HRNZ

Respondent

Judicial Committee: KG Hales, Chairman – RG McKenzie, Committee Member

Date of Hearing: 19 September 2013

Date of Decision: 25 September 2013

THE CHARGE

Details of alleged breach/ruling sought/interference alleged:

(1) THAT, on 30 June 2013, Gavin Anthony Cook, the trainer and person in charge of the horse VALHALLA which had been taken to the Rangiora Harness Racing Club for the purposes of engaging in a race namely the BISHOPDALE-BUSH INN TABS AMATEUR DRIVERS MOBILE PACE, Race 2 on 30 day of June 2013 and that he failed to present the said horse free of prohibited substances namely Bicarbonate or other alkali substance as evidenced by a blood TC02 level of 37.0mmol/L and 38.3mmol/L. This is in breach of the Prohibited Substance Rule, Rule 1004(1)(1A)(2).

(2) And you are therefore liable to the penalty or penalties which may be imposed in accordance to Rule 1004(7) and the horse is liable to the penalty which may be imposed in accordance to Rule 1004(8) of the New Zealand Rules of Harness Racing.

Rules 1004(1) and (1A) (2) read as follows:

“(1) A horse shall be presented for a race free of prohibited substances.
(1A) A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 millimoles per litre in plasma.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.”

Rule 1004(7) reads as follows:

“(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:
(a) a fine not exceeding $10,000 and/or
(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.”

THE FACTS
An Agreed Summary of Facts was presented to the hearing.

(1) The facts are as follows: VALHALLA is a 9 year old bay gelding and is trained by Licence to Train Trainer Gavin Anthony Cook. VALHALLA is currently on a racing lease to Mrs M J Cook, R J Wilson and Mrs G E Wilson. VALHALLA has raced 92 times for 5 wins and 16 placings and stakes of $29,289.

(2) VALHALLA was correctly entered and presented to race by trainer Mr. Cook. VALHALLA was driven in the race by Mr Cook to finish 13th in Race 2, the BISHOPDALE-BUSH INN TABS AMATEUR DRIVERS MOBILE PACE, at the Rangiora Harness Racing Club meeting on 30th June 2013 and did not win a stake.

(3) VALHALLA was subjected to TCO2 testing twice before racing on the 30th of June 2013. The first sample was taken at 10.45am and the second sample was taken at 11.36pm. The race was programmed to start at 11.55am. The second sample was taken after the horse returned a screening level of 39 on the Istat machine from the first sample. The official Lab result from the first sample was 37.0 which was advised to the RIU on the 2nd of July 2013.

(4) The screening result on the Istat machine from the second sample showed a level of 40. The results from the Lab on the 3rd July 2013 advised the official result as 38.3. Both results advised, exceeded the level set by Harness Racing New Zealand.

(5) The Certificates of Analysis from the New Zealand Racing Laboratory Services Limited (NZRLS) confirmed the blood samples as 34206 and 34226, which were signed by the Official Racing Analyst Rob Howitt and Racing Analyst Carolina Troncoso.

(6) The tests taken from VALHALLA were given the HRNZ Reference ID numbers 34206 and 34226 respectively. Mr Cook did not contest the taking of the blood samples.

(7) On the 3rd of July 2013 Racecourse Investigators Mr Robin Scott and Kylie Williams went to Mr Cook's property, 408 Ellesmere Road, and advised him of the elevated TCO2 results returned by VALHALLA.

(8) Mr Cook was given a copy of the Certificate of Analysis, TCO2 Authorisation Forms and a copy of the Prohibited Substance Rule of the New Zealand Rules of Harness Racing.

(9) Mr Cook advised that he took the horse to the races and attended to the horse at the race meeting. Mr Cook denied administration of any alkali by any means to VALHALLA.

(10) Samples of feed and additives were taken from Mr Cook's feed room and forwarded to the New Zealand Racing Laboratory Services (NZRLS) for testing. NZRSL reported on the presence of Humidimix powder which contains carbonate substances and Sodium Bicarbonate as being an alkalinizing substance.

(11) Further blood samples were taken and the results are shown below:

- 3 July 2013 - 408 Ellesmere Road, 10.46am - 33.3

(Mr Cook did not know the horse was going to be tested)

- 12 July 2013 - 408 Ellesmere Road, 10.03am - 36.0

- Addington Raceway, 2.57pm - 35.7

- Addington Raceway, 4.33pm - 36.8

- Addington Raceway, 6.12pm - 35.8

(Mr Cook knew the horse was going to be tested at Addington Rwy)

- 19 July 2013 - 408 Ellesmere Road, 3.34pm - 32.2

(Mr Cook did not know the horse was going to be tested)

- 21 July 2013 - 408 Ellesmere Road, 10.08am - 33.6

- Ashburton Raceway, 2.48pm - 34.6

- Ashburton Raceway, 4.05pm - 35.6

(Mr Cook knew the horse was going to be tested at Ashburton Rwy)

- 29 July 2013 - 408 Ellesmere Road, 9.46am - 32.4

- 408 Ellesmere Road, 11.37am - 31.1

(Mr Cook did not know the horse was going to be tested)

(12) Mr Cook's Veterinarian Ms Emma Reedy tested blood samples from VALHALLA and these were tested by the Canterbury Equine Clinic, who advised that the horse had a high haemoglobin and that the horse had also "tied up" recently.

(13) Mr Cook cannot advise how VALHALLA's level came to be elevated and advises that he has never knowingly administered to the horse any alkalizing agent by tubing or any other method for the purpose of illegally enhancing the horses performance.

(28) Mr Cook has no previous records for a breach of this rule. Mr Cook is a hobby trainer and has held a licence for 12 years, racing numerous horses for a total of twenty eight wins, thirty six 2nds and thirty two 3rds and stakes of over $175,000.

FURTHER SUBMISSIONS

Mrs Williams explained to the hearing the use of the Istat machine. She said that this device was a screening device that had been in operation since March 2012. She stressed that the results produced by the Istat machine were not evidential and that in order for a horse’s TC02 level to be accurately determined, a blood sample had to be the subject of laboratory testing.

Mrs Williams was asked to advise the hearing as to why Mr Cook had not been told that the horse VALHALLA was returning high screening results so that he could have been given the opportunity of consulting his veterinarian and if necessary, scratching the horse from the race. Mrs Williams told the hearing that it was, at that time, not the policy of the R.I.U. to disclose to trainers or owners what the Istat results were. She confirmed, as a result of pressure from trainers, that the protocol in this regard has now been changed. In any event, Mrs. Williams said that when her second test was completed, which showed the higher of the two readings taken, Mr. Cook was already out on the track, and that it was not appropriate to call him in.

Of importance, however, is the fact that the Istat machine is not used by Racing Investigators at every race meeting.

In further submissions made to the hearing, Mrs Williams referred to the decision of Whata, J in HRNZ v J because, Mr. Cook could not advise how the horse’s TC02 level came to be elevated because of the fact that he had never knowingly administered to the horse any alkalizing agent by tubing or any other method, for the purpose of illegally enhancing the horse’s performance. In HRNZ v J, Whata, J said:

“When I apply all these interpretative factors, I agree with the Tribunal that a breach of Rule 1004(2) triggers liability regardless of the precautions taken by a trainer or other person in charge of the horse to comply with Rule 1004(1)(2) or (3).”

Later in his judgment, Whata, J said:

“In summary, the plain language of Rule 1004(4), informed by purpose and context, expressly imposes absolute liability for breach of Rule 1004(2) or (3).”

Thus, pursuant to the Rules of Harness Racing, Racing Investigators are not required to prove how or why a horse has returned an elevated TC02 level.

MR. COOK’S SUBMISSIONS IN RESPONSE (presented in writing).

The fact that VALHALLA provided a high TC02 reading on June 30 2013 is readily admitted and accepted and under the Rules of HRNZ this places strict liability on my self the trainer. The stated reason for this in the lab report and the written report from Dr. Andrew Grierson, is that a TC02 reading this high can only be caused by the administration of bicarbonate or other alkali substance.

Until the arrival of VALHALLA into my stable I was always a firm believer in this stance as the science supporting it was both compelling and extensive. VALHALLA has turned this belief on its head and has clearly shown to me that the science does not cover all possibilities.

The one fact that I do know with absolute certainty is that VALHALLA was not administered any bicarbonate or other alkali either by stomach tube or any other method. Whilst this claim is easy for me to make it is frustratingly difficult to prove to another party. Still I know what occurred in my stable on the day in question which has required me to look at the entire scope of other possibilities.

I believe this high TC02 result is due to a range of compounding circumstances particular to VALHALLA. I would ask that the following facts and observations be taken into consideration when assessing the level of culpability and intent when considering the penalty.

(1) I do not own nor do I have the expertise necessary to stomach tube a horse as indicated as the likely cause by the lab and vet reports. In support of this stance I wish to provide a written statement from Ms. Sue Blake who assists at my stables on a volunteer basis three mornings per week and is totally conversant with my race day procedures.

(2) Prior to his high race day test VALHALLA had been in my stable for only two weeks since arriving from the stable of Geoff and Jude Knight. Following this high test result, the Knights have reported to me that he also returned a high result (34.5) for them soon after he had moved into their stable. This caused them great concern as it could not be explained.

Subsequent to VALHALLA’s high race day result he has repeatedly tested on or close to the permissible threshold on several occasions at both the race track and also at my stables. Of particular note are the tests conducted by the RIU on 12 July when VALHALLA tested consistently in a very narrow range on or around 36mmol over an extended period of over eight hours. The non peaking and falling nature of this results is I believe indicative of a horse that can and does hold a naturally high TC02 level when the correct stressors are present.

VALHALLA’s two subsequent race day appearances has seen him test at 34.70mmol and 34.4mmol. This is after removing him from all commercial and natural feed supplements in an effort to eliminate any and all potential causative agents.

I conclude that this horse is susceptible to a high TC02 reading when experiencing race day stresses in addition to the stress caused by the stable change.

(3) The race on 30 June was the first start for VALHALLA from my stable. I unknowingly floated him on the left hand side of my trailer float which I subsequently learned does not suit him. He spent the entire journey scrambling up the walls of the float and arrived on course sweating heavily and highly agitated. He remained nervous and agitated prior to this race and subsequently raced poorly finishing last which was in sharp contrast to his previous start which he had won easily.

Due to his poor race day performance a blood test was taken which showed that the horse was highly stressed. The report from Emma Reedy at The Canterbury Equine Clinic confirms the test results and highlights some significant changes in his blood profile which likely had an impact on VALHALLA’s TC02 levels.

Combined with the poor blood profile which indicates that the horse’s system was stressed which was compounded on the day by a horror float trip indicate a more logical explanation of his high TC02 reading.

(4) This is my first serious racing breach and my record is clear. Harness Racing is my retirement hobby and I have no need or pressure to derive any income from it. This was a low stake event and I did not bet on the horse. Therefore I contend that I have no motivation to engineer any advantage by cheating.

(5) No supporting evidence has been presented from the RIU regarding the existence of tubing equipment or the ability to use it. Or any evidence that I have a regular purchase record of alkalizing agents. Also no evidence has been tabled to show any attempt to profit from gambling on the horse simply because none can exist. Some or all of these factors would exist and be demonstrable and supportive if as the RIU contends that VALHALLA has been administered bicarbonate or other alkali.

(6) On the race day I was advised by the RIU that VALHALLA had returned a high result on the Istat machine at approximately 11.10 am which was 45 minutes prior to race start time. I asked on two occasions to know what the result was but Mrs Williams declined to share this information with me. Mrs Williams correctly followed the RIU procedure that was in place at the time.

The rule under which I have been charged is in place to protect the integrity of the industry and the confidence of the punters in our product. It would seem contrary to this stated aim for the RIU to knowingly allow a horse to compete that is highly likely to be in breach of these rules.

Confronted with this conflict of purpose and the potential negative image it could portray the RIU very promptly changed their procedure to one of disclosure of Istat results. Had VALHALLA’s very high reading been disclosed to me then it is highly likely, in fact almost certain, that I would have taken the responsible action and scratched the horse. This would have minimized the damage to the integrity of the industry and also protected the punter.

I realize that the same charge would still have ensued, however had full disclosure been provided then as the person ultimately responsible I could easily have mitigated the damage. In light of this situation I would ask the Judicial Control Authority for Racing when making their deliberations on penalty to act as if full disclosure had been provided and had been appropriately acted on by myself.

I contend that the charge should be dealt with through a fine rather than a suspension. The fine should be at the lower of any applicable range due to my previous clear record and due to the demonstrated low level of culpability and intent.”

PENALTY SUBMISSIONS

Mrs Williams submitted the following:

“There is no record of Mr Cook having breached this rule in the past. He is a hobby trainer and has held a licence for 12 years, racing numerous horses for a total of 28 wins, 36 seconds and 34 thirds, and has won stakes in excess of $177,000. Mr Cook has a clear record and credit has to be given for the manner in which he has conducted himself.”

Mrs Williams also referred us to Rule 1004(D) and requested that notwithstanding the fact that the horse was placed last, that it should be disqualified.

Having regard to the TC02 level that was recorded, Mrs Williams submitted that a fine between $4,000 and $5,000 should be imposed.

In response, Mr Cook acknowledged that a fine would be imposed, but did not think that it should be in the region suggested by Mrs Williams. Mr Cook was supported by Mr Robin Wilson in the hearing. Mr Wilson is a part owner of VALHALLA. Mr Wilson spoke of Mr Cook’s integrity, and also expressed his opinion, questioning why VALHALLA was allowed to race when it was clear that the horse had an elevated TC02 level.

Mr Wilson was also of the view that the horse was stressed on the day of the race, and had several health issues which required treatment.

Mr Cook also presented a personal reference from Ms Sue Blake who works for him on a voluntary basis in his stable. Ms Blake spoke of Mr Cook’s good character and advised the hearing that she had never seen him engage in any form of “tubing” a horse, and neither had she seen any equipment around the stables which would enable this process to be undertaken. She said that she had assisted Mr Cook in preparing VALHALLA for the race.

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PENALTY DECISION AND REASONS

We have given consideration to a number of decisions made by Judicial Committees from November 2009 until September 2012.

The decision that we take the most guidance from is RIU v S (2013). In that case, Mr. S was fined the sum of $2,000 as a result of his horse having a TC02 level of 37.2 mmol per litre of plasma. In the present instance, VALHALLA was the subject of two separate tests which returned TC02 levels of 37 mmol per litre of plasma and 38.3 mmol per litre of plasma. Thus, for the purposes of assessing penalty, we regard the reading of 38.3 mmol per litre of plasma as the relevant reading.

It is noted that the Appeal Tribunal in RIU v S considered that the fine of $2,000 was at the “lower end” of the scale.

Therefore, having regard to the S decision and the fact that in this instance the TC02 level was higher than that in the S case, an upward adjustment in the penalty is required. We note that we were not asked to consider a disqualification or suspension in this instance, and thus our focus for the purposes of penalty is that of a fine.

In assessing the amount of the fine, the Committee recognizes that the maximum fine for a breach of the Rule was increased by Harness Racing New Zealand in 2011 from $10,000 to $20,000. We consider that the fine in this case must take recognition of that, in terms of the seriousness of which a breach of the Rule is regarded.

In all of the circumstances, we consider that a fine of $2,500 should be imposed in this instance. In setting that level of penalty, we have taken into account Mr Cook’s unblemished record to date, and the fact that he is only a hobby trainer. However, against that we must also take into account that a comparatively high TC02 level was returned.

VALHALLA is also disqualified from Race 2 on 30 June 2013, pursuant to Rule 1004(8).

Mr Cook is also ordered to make a contribution to Judicial Control Authority for Racing costs of $350.

It is recorded that the RIU did not seek an order as to costs.

……………………………….
K G Hales

Chairman

hearing_type: Non-race day

Rules: 1004(1)(1A)(2)

Informant: Mrs Kylie Williams - Racecourse Investigator - Racing Integrity Unit

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PersonPresent: Mrs K Williams - Racecourse Investigator - Racing Integrity Unit, Mr G A Cook - Licence to Train Trainer HRNZ, Mr R Wilson - Part owner of VALHALLA and supporting Mr G A Cook

Respondent: Mr Gavin Anthony Cook - Licence to Train Trainer HRNZ

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