Non Raceday Inquiry – RIU v GJ and CF Lee – 9 February 2012 – Decision dated 28 February 2012
ID: JCA14790
Decision:
NEW ZEALAND RACING INTEGRITY UNIT (RIU) v COLIN FREDERICK LEE and GORDON JAMES LEE
DECISION OF NON RACEDAY JUDICIAL COMMITTEE
HEARING 19 DAY OF DECEMBER 2011 and 9 FEBRUARY 2012
NON RACEDAY INQUIRY JUDICIAL COMMITTEE: Murray McKechnie, Chairman and Timothy Gresson
COUNSEL: Chris Lange for RIU,Mary-Jane Thomas and Riki Donnelly for Messrs Lee
1. THE CHARGES AND THE COURSE OF THE HEARING
1.1 Mr Colin Lee and Mr Gordon Lee train in partnership. They face two (2) charges. These are in relation to the standard bred horses Surreal Moment and Lite Bourbon. It is alleged that on the 23 June last and the 12 July last these horses were presented at Forbury Park Racecourse in Dunedin in breach of Rules 1004(1) (2) & (4) in that they tested positive for the prohibited substance boldenone.
1.2 The hearing commenced on the 19 December 2011 in Dunedin. It was not possible to conclude the hearing on that day. Directions were given for the future conduct of the hearing. A telephone conference took place on the 19th January this year when further directions were issued and timetabling orders made. In the result the hearing resumed in Wellington on the 9th February this year.
1.3 At the commencement of the hearing at Forbury Park Racecourse in Dunedin Ms Thomas formally entered pleas of guilty by both Messrs Colin Lee and Gordon Lee to the two (2) charges relating to the horse Surreal Moment on the 23rd June 2011 and the horse Lite Bourbon on the 12th July 2011. Mr Lange presented a summary of facts. Ms Thomas made it plain that she took issue with parts of that summary and then advised the Committee that she sought leave to call a veterinarian Mr Brendon Bell. A brief of evidence for the veterinarian was not made available until late on Friday 16th December 2011. It was not referred to in the submissions filed on behalf of Messrs Lee and filed earlier that same day. During the telephone conferences which had taken place on the 13th November and the 13th December 2011 nothing had been said to indicate that technical evidence from a veterinarian would be put forward in mitigation of penalty. A careful reading of Mr Bell’s brief of evidence makes it plain that the material could have been put in the form of a written brief well in advance of the Friday before the hearing which was to take place on the following Monday 19th December. It is apparent that the veterinarian had advised the Lee Bros over an extended period and had been involved in investigating the circumstances which led to the charges before the Committee for a period of many months. He had engaged in a number of telephone discussions with Dr Geoffrey Beresford who is the official Racing Analyst and General Manager of New Zealand Racing Laboratory Services Limited. It is that organisation that is responsible for conducting the testing of urine samples.
1.4 When Ms Thomas was asked for an explanation as to why Mr Bell’s brief had not been available earlier the only explanation she could offer was to indicate that the fault lay with legal counsel. Mr Bell was present at Forbury Park and after some discussion it was agreed to receive his brief. Mr Lange made it clear that he wished to reserve the right to call evidence in reply. That was agreed to by the Committee. Mr Bell read his brief of evidence and was then asked a number of questions by Ms Thomas. He was then questioned by Mr Lange. Further reference will be made to his evidence later in this decision. Mr Lange made it known that he wished to consult with Dr Beresford and with Dr Andrew Grierson, Equine Veterinarian, and to furnish material from either or both of those persons if it was thought appropriate. This was agreed to by the Committee and that was the point at which the hearing in Dunedin came to an end.
1.5 As noted above there was a further telephone conference on the 19th January 2012. By that time it was plain that Mr Lange proposed to file a detailed brief from Dr Beresford. That had been made available to the Committee and to Ms Thomas. Mr Lange went on to advise that a formal brief of evidence would also be furnished by Dr Grierson. Arrangements were put in place for that material to be available and for Ms Thomas to give advice as to whether one or other of Dr’s Beresford or Grierson might be required for cross examination at the resumed hearing. During the telephone conference on the 19th January this year Ms Thomas advised that (because the condition of the food was central to the position which is advanced for the Lee Bros) she was making arrangements for testing of the food at the Lee stables. Ms Thomas indicated that when the tests were completed the results would be made known to the Committee and to Mr Lange. The date was then set for the resumed hearing on 9th February this year. The testing of the food took place during January this year and a Certificate of Analysis was issued by the laboratory operated by Asure Quality Limited dated the 1st February 2012. A good deal more will be said of that later.
2. THE POSITION TAKEN FOR THE LEE BROS
2.1 It is accepted by the Defendants that under the Rules of New Zealand Harness Racing, as currently interpreted, the charges laid under Rules 1004(1)(2) & (4) provide for an offence which is one of absolute liability.
2.2 The Defendants take issue with that part of the summary of facts which asserts that the only method of administration of boldenone is by intra-muscular injection. They contend that the boldenone came from what has been described as mouldy oats – that is horse feed which was ingested orally by the subject horses. In support of the position taken for the Defendants Ms Thomas pointed to the following:
(a) A letter dated the 13th September 2011 by Dr Andrew Grierson. This was a letter written to Mr Barry Kitto, a Racecourse Investigator employed by RIU. The letter contains the following passage in the penultimate paragraph:
Boldenone has been recorded as being absorbed by oral administration in ruminants and there is no reason why a horse would not absorb boldenone by this route but there is no literature on the subject. Boldenone is usually administered by way of an intra-muscular injection of an oily solution.
(b) Dr Grierson swore an affidavit on the 8th February 2012. He was not required for cross examination upon that document. He repeated the same assertion that was made in his letter of the 13th September last. Further he made certain calculations following advice that boldenone had been detected in oats at 3.7milligrams per kilogram. This is a reference to the Asure Quality test of the 1st February 2012. Reference is made to that in paragraph 1.5 above. Dr Grierson expressed his view on this issue in these terms:
“If then a horse was fed 5kg of oats containing 3.7milligrams per Kg of boldenone for several days it is possible for the urinary level of boldenone to rise over a detectable level of 2milligrams per litre. In balance I am not aware of any positive swabs from feeding oats to horses in any country to date”.
Dr Grierson, in his affidavit, explained that boldenone has been found in dried faeces and faecal contaminated hair and skin of cattle. He went on to express the opinion that faecal contamination would not occur when taking a urine sample from a racehorse.
Dr Grierson’s final view expressed in the last paragraph of his affidavit of the 8th February 2012 was as follows:
“In my opinion based on the current scientific knowledge the positive swab for boldenone for Surreal Moment and Lite Bourbon could have arisen from an intra-muscular injection, however an oral source of boldenone cannot be ruled out”.
(c) As noted Dr Beresford had furnished a detailed brief of evidence. This was signed and handed forward at the hearing on the 9th February and Dr Beresford was questioned upon it. It is appropriate to record that the witness, with the agreement of counsel, had spoken with Asure Quality and was satisfied that the method used for taking the food sample was valid notwithstanding that the certificate on its face contains the expression “the method used is not validated by this matrix”.
Ms Thomas criticised the testing process as not involving a quantitative analysis. Dr Beresford explained that quantitative analysis has not been undertaken for the harness racing code and he provided reasons for this: refer paragraphs 11 to 15. Dr Beresford gave his opinion as follows:
“In these boldenone cases, it is not possible to make an assessment of the relative levels of boldenone from the instrument response in a series of urine samples from the same animal. The instrument response varies with the variability of the urine matrix of each sample (the reasons for this variability having been explained above) so the same concentration of boldenone could give a markedly different response in two (2) different urine samples. This is not corrected for in a qualitative analysis whereas it would be for a quantitative analysis”.
Dr Beresford recounted his discussions with Mr Bell who had obtained an earlier analysis from Asure Quality (the first test). The certificate for this first test is dated 23rd September 2011. That result was reported as negative. It was significantly below the threshold level of the test which Asure Quality undertook and the substance could not be identified. Dr Beresford opined that it is in the nature of medical testing a substance may be present in a sample at the level below the detection limit but pointed out that the certificate from this first test from Asure Quality stated that boldenone was not detected. In Dr Beresford’s opinion boldenone was not present in the feed sample or if it was then at a level of less than four (4) parts per billion. In Dr Beresford’s view even if boldenone were present at that level he knew of no case this could result in the detection of boldenone in the urine sample. It is important to note that the first sample or first test of which Dr Beresford was speaking was provided by Brendon Bell for Asure Quality and was described as mixed feed. The second sample which is the subject of the certificate of the 1st February 2012 is described as whole oats.
It is appropriate to repeat the last three (3) paragraphs of Dr Beresford’s brief of evidence.
22. The detection limits calculated for the mixed feed sample (the first report) are much higher than for oats alone (the second report) because of background impurities in the matrix. Because oats were only part of the first sample and because of higher detection limit, boldenone was not detected in the mixed sample whereas it was detected in the oats when analysed on its own.
23. What is not known is whether oats always have boldenone in them or not. To date I have been unable to locate any research on this.
24. In conclusion, the analytical results of urine samples taken from the horses are consistent with conventional administration of a therapeutic preparation. However, it cannot be scientifically excluded that the contaminant in the feed could elevate boldenone in a horse’s urine. To the best of my knowledge at this time, there have been no instances in New Zealand or internationally where boldenone has been detected in equine urine samples as a result of consumption of contaminated feed. An extensive study would be required to establish which feeds and what circumstances give rise to detectable boldenone levels in the feeds and whether this level of contamination can give rise to detectable levels of boldenone in equine urine samples.
2.3 Mr Lange for the RIU accepted that the analysis undertaken by Asure Quality which resulted in the certificate of the 1st February 2012 was valid. In answer to questions from the Committee concerning the time that had gone by since the positive samples were taken in June and July 2011 and the whole oats were analysed in January 2012 Mr Lange accepted that the food analysed was from the same batch that had been fed to the horses at the material times.
2.4 Ms Thomas outlined a number of other factors which she submitted pointed to the food as the source of the boldenone. These were:
(a) A number of horses in the Lee Bros stable were tested between the 6th February 2011 and the 23rd November 2011. The first of these tests was undertaken by the RIU upon the horse Hugo Seelster on the 2nd February 2011 and produced a negative result. The committee was told that the horse was being fed from different oats than those which were fed to Surreal Moment and Lite Bourbon. After the positive tests to those two horses further tests were undertaken, some under the supervision of the RIU and others by Mr Bell. In most instances the results were positive but on some occasions negative. There was evidence that the negative results occurred when the horses were spelling and away from the stables. It was submitted that these inconsistent results supported the proposition that the boldenone had come from the food at the stables.
(b) The request by the Lee Bros that a second test be taken for Lite Bourbon was consistent with their strongly held belief that the boldenone came from feed and not from intentional administration. Ms Thomas submitted that had the Lee Bros been involved in the intentional administration of boldenone then they would not have requested a second sample from Lite Bourbon. That second test took place under the supervision of Mr Barry Kitto, a Racecourse Investigator employed by RIU on the 30th July 2011 and produced a positive result.
(c) A large number of character references were put before the Committee. All of these spoke of the good character of the Lee Bros and many said they (the Lee Bros) would not wilfully breach the Rules of Harness Racing.
(d) Ms Thomas emphasised the lengths which the Lee Bros had gone to in order to prove their proposition that boldenone came from the food. She described their conduct as dogged. She pointed to the amount of money which they had spent. The Committee was shown veterinary bills totalling several thousand dollars.
(e) It was submitted that on the state of the evidence it would not be proper to conclude that the boldenone had come from both inter muscular injection and the mouldy oats at the same time. Ms Thomas contended that a conclusion of this kind would require a very high degree of improbability.
3. THE POSITION TAKEN FOR RIU
3.1 Mr Lange acknowledged that the summary of facts in paragraph 15 was not consistent with Dr Grierson’s letter of the 13th September 2011. Further he acknowledged that it was not consistent with Dr Grierson’s affidavit of 8th February 2012. Mr Lange contended the Committee was not required to make a positive determination of how boldenone came to enter the subject horses. Further, Mr Lange submitted if the Committee were to embark upon such an exercise the evidence relied upon by the Defendants was not sufficiently persuasive to meet the test laid down under the rules - Rules 1005 and 1008 provide:
1005 Any exception , exemption, proviso, excuse or qualification, whether it does or does not accompany the description of the Rules, may be proved by the defendant, but need not be negatived in the information, and, whether or not it is so negative, no proof in relation to the matter shall be required on the part of the informant.
1008 In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:-
(a) it shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule; and
(b) any breach of a Rule shall be considered as an offence of strict liability.
3.2 With reference to the scientific and veterinary evidence Mr Lange emphasised that nowhere in the literature is there any documented evidence of boldenone having been found in equine animals in consequence of ingestion of food. This lack of scientific information was acknowledged by Mr Bell in answer to questions in cross examination. It is also referred to in the evidence of Dr Beresford. Mr Lange contended that there was, at best a possibility that some boldenone may have come from the horse food but that there was no adequate evidence to positively demonstrate that proposition.
3.3 Further with reference to the standard or burden of proof Mr Lange advanced two (2) propositions. The first was that by reference to the veterinary evidence and any other material that might point to oral administration the Committee must undertake what he described as “a judgment test”. The second submission was that if there was an aggravating factor to be positively found, such as deliberate administration of the prohibited substance, then proof of that conduct would require to be positive and/or compelling.
3.4 Rule 1008A expressly provides for the standard of proof that is required. It states:
1008A Where in any proceeding, any matter is required to be proved by an informant or defendant, the standard of proof shall be the balance of probabilities.
4. DISCUSSION
4.1 Ms Thomas strenuously submitted that the Committee should make a positive finding that the boldenone came from the mouldy oats. The submission was coupled with the proposition that Messrs Lee or others had not administered boldenone to Surreal Moment and Lite Bourbon.
4.2 To accept the submission advanced for Messrs Lee the Committee must be satisfied on the balance of probabilities that the boldenone came from the food source rather than by intra muscular injection. In our view the evidence called for RIU may allow for the possibility that boldenone came from the food ingested by the two (2) horses. The evidence does not unequivocally state the horse food was in fact the source of the boldenone. It does no more than acknowledge that this may have been possible. The evidence called for Messrs Lee did not provide any positive evidence that the boldenone must have come from the food. We are mindful that nowhere in the literature consulted by Dr Beresford or by Dr Grierson is there any established case of boldenone having been found in horses in consequence of the feed which they have ingested. Mr Bell told the Committee that he too had researched the position and could not find any literature to support the proposition that boldenone found in horses came from the food which they had ingested.
4.3 We are also conscious that there were two (2) tests of the food. The first produced no positive finding. The second, many months later, was confined to oats alone. It did provide a positive reading for boldenone. It does not follow however that on the occasions of the tests on the 23rd June and the 12th July 2011 boldenone came from the food which the horses had ingested.
4.4 The Committee does not have before it any evidence that goes beyond raising the possibility that boldenone may have been in the food and that this may have raised the level of that substance in the urine samples. To reach the standard of proof on the balance of probabilities it is necessary to determine, in the case of competing explanations, that one is more probable, on balance, then the other. If there is no principled basis for preferring one proposition over the other then no positive finding can be made. The Committee finds itself in that position.
4.5 All other considerations aside it is not necessary to determine the manner in which boldenone entered the horses. The manner of administration or ingestion is not an element of the offence.
4.6 In as much as the summary of facts presented on the 19th December asserted, by paragraph 15, that boldenone must have been administered by intra muscular injection that assertion must now be read in light of these comments.
5. PENALTY
5.1 Ms Thomas pressed upon the Committee the effect of these proceedings upon the Defendants’ reputations. We accept that each is of good reputation. With the Committee not able to make a positive determination of how boldenone came into the horses the reputation submission is of less significance. The Committee accepts (as does the RIU) that there is no evidence of any direct involvement by either of the Defendants. In this regard it is appropriate to refer to a passage in the Court of Appeal judgment in McI v NZ Greyhound Racing Association Inc, C of A, 31 October 2000. In that case the Appellant placed great emphasis upon his reputation and standing in the industry. The Court of Appeal stated at paragraph 7:
The reason why Mr McI has appealed to this Court, notwithstanding three previously unsuccessful arguments, is that he perceives himself as having a “doping conviction” damaging to his reputation and standing in the industry which is unjust when he took all reasonable care. He runs a large-scale greyhound training operation. In the previous racing season he had a total of 568 starts with greyhounds at Christchurch alone with no other reported irregularities. He regards the “conviction” as a serious strain on his character and integrity which leaves him perceived as no different from those convicted of wilfully using drugs in the industry. But that is a wholly unjustified reaction. If, contrary to his contention and as we uphold, the rule is broad enough to capture those who take to a racecourse a greyhound to which has been accidentally administered substances that result in the detection of traces of drugs to which the rules apply, even where all reasonable care has been taken, the rule is one directed to ensuring that the animals race on even terms, not one just directed to intentional doping.
5.2 Ms Thomas also emphasised the following:
(a) That the RIU found no boldenone at the Defendants’ stables.
(b) The Defendants had been fully co-operative throughout the inquiry. Reference has already been made to the request for a second sample from the horse Lite Bourbon.
(c) The Defendants had pleaded guilty.
(d) The level of boldenone was found at low levels.
(e) That there would necessarily be a loss of stake money due to the mandatory disqualification that must take place under Rule 1004(D).
(f) That the Defendants have an unblemished record. This submission ties in with that relating to the Defendants’ reputation.
The Committee accepts that all of these matters are legitimate considerations in fixing the level of penalty.
5.3 For the RIU Mr Lange emphasised these matters:
(a) That the status of the races was not significant and the stakes payable to the two (2) horses were modest.
(b) There was no direct evidence of administration of boldenone by either of the Defendants.
(c) As to the nature of the penalty to be imposed attention was drawn to the comments of the Supreme Court in Z v Complaints Assessment Committee [2009] 1 NZLR 1, McGrath J at paragraph 97:
“... the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure appropriate standards of conduct are maintained in the occupation concerned”.
(d) The clear record of the Lee Bros was accepted.
(e) No disqualification of either of the Defendants was sought.
5.4 Counsel helpfully referred the Committee to a number of decided cases upon penalty. None however involved boldenone or the unique circumstances of this case.
5.5 Both counsel submitted that modest financial penalties would be appropriate. We note that at the commencement of the proceedings Mr Lange was seeking a significantly greater fine in each case. The Committee agrees that the financial penalties should be relatively modest.
6. COSTS
6.1 There were a number of competing submissions made. These can be summarised as follows:
(a) Mr Lange for the RIU submitted that costs should lie where they fall.
(b) Mr Lange acknowledged that the paragraph in the summary of facts to which objection was taken could not now be accepted in the form in which it was originally advanced.
(c) Ms Thomas emphasised that the Lee Bros had incurred significant expense and sought a contribution from the RIU. There was criticism of the RIU not undertaking independent tests of the food. The RIU was under no obligation to do that. The expense incurred by the Lee Bros did not result from the actions of the RIU, rather from the course of inquiry which they chose to pursue and the state of scientific or veterinary knowledge as it stood in mid 2011.
(d) Ms Thomas accepted Dr Beresford’s behaviour throughout had been beyond criticism. The Committee for its part acknowledges Dr Beresford consulted widely with professional colleagues and conducted himself with integrity.
(e) Mr Lange pointed to the RIU incurring considerable costs in having to obtain further material from Drs Beresford and Grierson and in flying Dr Beresford from Auckland to the resumed hearing in Wellington.
6.2 It is necessary to comment about the late brief from Mr Bell. As soon as the brief was read it was apparent that the Defendants would seek to have the Committee determine that boldenone had entered the horses through their feed; notwithstanding there was no evidence of this having occurred previously nor had Mr Bell been able to discover evidence of this beyond his own experience. The proposition that the breach of the prohibited substance rule arose from food has not been demonstrated by the Defendants upon the balance of probabilities. The hearing of this proceeding has been greatly extended by the efforts that the Defendants have made to demonstrate that proposition. It was necessary to adjourn the hearing and resume at the Wellington venue. Where a party to proceedings seeks to advance a proposition which it asserts is central to its case and fails to demonstrate that then this circumstance and the time taken for the hearing must come to account when fixing costs. The Committee considers that had Mr Bell’s evidence been made available earlier it ought to have been possible to have dealt with this matter uninterrupted.
6.3 The Committee accepts that the Lee Bros had spent many thousands of dollars on this case. A great deal of that on veterinary advice and in having the food from their stable analysed. It would however be a unique circumstance and hardly appropriate to contemplate a costs award in favour of parties who have pleaded guilty to a breach of the prohibited substance Rules of Harness Racing. The explanation put forward that boldenone came from the food has not been rejected “out of hand” - rather, as earlier explained, we are not satisfied that this explanation has reached the required standard of proof on the balance of probabilities.
6.4 It can be seen that there were many competing submissions on the costs question as between the parties. For the reasons set out here we decline to make any costs award either way: thus costs inter partes shall, in this case, lie where they fall.
6.5 There remains the question of the costs of the Judicial Control Authority (JCA). Given the protracted nature of this hearing and the reasons for that as explained above, in particular the late filing of the brief of the Veterinarian Mr Bell, the JCA has incurred significant costs. Ordinarily the JCA does not seek to recover costs from an unsuccessful party, or a party who has pleaded guilty, upon an indemnity basis. That practice will not be departed from here but the Committee considers there should be a meaningful contribution towards the costs by the Defendants. The Lee Bros will be ordered to pay the sum of $2,000.00 towards the costs of the JCA. As to how that sum is to be paid as between the Defendants and their counsel is a matter for them.
Penalty:
7 RESULT
7.1 Colin Frederick Lee and Gordon James Lee training in partnership under the NZ Rules of Harness Racing have pleaded guilty to informations alleging breaches of Rule 1004(1)(2)(4) on the 23rd June 2011 as the trainers of Surreal Moment and a breach of Rules 1004(1)(2)(4) as the trainers of Lite Bourbon on the 12th July 2011 and shall be convicted on each charge. On each charge each Defendant will be fined the sum of $300.00 thus a total for each Defendant of $600.00.
7.2 There will be no costs payable by Messrs Lee to the RIU.
7.3 Messrs Lee will pay a contribution towards the costs of the JCA in the sum of $2,000.00.
7.4 By rule 1004(D) there will be a mandatory disqualification of Surreal Moment on the 23rd June 2011 in Race 1 at Forbury Park. Likewise there will be a disqualification of Lite Bourbon from Race 4 at Forbury Park on the 12th July 2011. If the stake money has been paid out it shall be refunded to Harness Racing New Zealand. The placings in each race shall be amended in accordance with this decision.
Dated this 28th day of February 2012
_______________________________________
Murray McKechnie
Chairman
Pursuant to Rule 1114(6)
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 28/02/2012
Publish Date: 28/02/2012
JCA Decision Fields (raw)
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Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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hearing_title: Non Raceday Inquiry - RIU v GJ and CF Lee - 9 February 2012 - Decision dated 28 February 2012
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Decision:
NEW ZEALAND RACING INTEGRITY UNIT (RIU) v COLIN FREDERICK LEE and GORDON JAMES LEE
DECISION OF NON RACEDAY JUDICIAL COMMITTEE
HEARING 19 DAY OF DECEMBER 2011 and 9 FEBRUARY 2012
NON RACEDAY INQUIRY JUDICIAL COMMITTEE: Murray McKechnie, Chairman and Timothy Gresson
COUNSEL: Chris Lange for RIU,Mary-Jane Thomas and Riki Donnelly for Messrs Lee
1. THE CHARGES AND THE COURSE OF THE HEARING
1.1 Mr Colin Lee and Mr Gordon Lee train in partnership. They face two (2) charges. These are in relation to the standard bred horses Surreal Moment and Lite Bourbon. It is alleged that on the 23 June last and the 12 July last these horses were presented at Forbury Park Racecourse in Dunedin in breach of Rules 1004(1) (2) & (4) in that they tested positive for the prohibited substance boldenone.
1.2 The hearing commenced on the 19 December 2011 in Dunedin. It was not possible to conclude the hearing on that day. Directions were given for the future conduct of the hearing. A telephone conference took place on the 19th January this year when further directions were issued and timetabling orders made. In the result the hearing resumed in Wellington on the 9th February this year.
1.3 At the commencement of the hearing at Forbury Park Racecourse in Dunedin Ms Thomas formally entered pleas of guilty by both Messrs Colin Lee and Gordon Lee to the two (2) charges relating to the horse Surreal Moment on the 23rd June 2011 and the horse Lite Bourbon on the 12th July 2011. Mr Lange presented a summary of facts. Ms Thomas made it plain that she took issue with parts of that summary and then advised the Committee that she sought leave to call a veterinarian Mr Brendon Bell. A brief of evidence for the veterinarian was not made available until late on Friday 16th December 2011. It was not referred to in the submissions filed on behalf of Messrs Lee and filed earlier that same day. During the telephone conferences which had taken place on the 13th November and the 13th December 2011 nothing had been said to indicate that technical evidence from a veterinarian would be put forward in mitigation of penalty. A careful reading of Mr Bell’s brief of evidence makes it plain that the material could have been put in the form of a written brief well in advance of the Friday before the hearing which was to take place on the following Monday 19th December. It is apparent that the veterinarian had advised the Lee Bros over an extended period and had been involved in investigating the circumstances which led to the charges before the Committee for a period of many months. He had engaged in a number of telephone discussions with Dr Geoffrey Beresford who is the official Racing Analyst and General Manager of New Zealand Racing Laboratory Services Limited. It is that organisation that is responsible for conducting the testing of urine samples.
1.4 When Ms Thomas was asked for an explanation as to why Mr Bell’s brief had not been available earlier the only explanation she could offer was to indicate that the fault lay with legal counsel. Mr Bell was present at Forbury Park and after some discussion it was agreed to receive his brief. Mr Lange made it clear that he wished to reserve the right to call evidence in reply. That was agreed to by the Committee. Mr Bell read his brief of evidence and was then asked a number of questions by Ms Thomas. He was then questioned by Mr Lange. Further reference will be made to his evidence later in this decision. Mr Lange made it known that he wished to consult with Dr Beresford and with Dr Andrew Grierson, Equine Veterinarian, and to furnish material from either or both of those persons if it was thought appropriate. This was agreed to by the Committee and that was the point at which the hearing in Dunedin came to an end.
1.5 As noted above there was a further telephone conference on the 19th January 2012. By that time it was plain that Mr Lange proposed to file a detailed brief from Dr Beresford. That had been made available to the Committee and to Ms Thomas. Mr Lange went on to advise that a formal brief of evidence would also be furnished by Dr Grierson. Arrangements were put in place for that material to be available and for Ms Thomas to give advice as to whether one or other of Dr’s Beresford or Grierson might be required for cross examination at the resumed hearing. During the telephone conference on the 19th January this year Ms Thomas advised that (because the condition of the food was central to the position which is advanced for the Lee Bros) she was making arrangements for testing of the food at the Lee stables. Ms Thomas indicated that when the tests were completed the results would be made known to the Committee and to Mr Lange. The date was then set for the resumed hearing on 9th February this year. The testing of the food took place during January this year and a Certificate of Analysis was issued by the laboratory operated by Asure Quality Limited dated the 1st February 2012. A good deal more will be said of that later.
2. THE POSITION TAKEN FOR THE LEE BROS
2.1 It is accepted by the Defendants that under the Rules of New Zealand Harness Racing, as currently interpreted, the charges laid under Rules 1004(1)(2) & (4) provide for an offence which is one of absolute liability.
2.2 The Defendants take issue with that part of the summary of facts which asserts that the only method of administration of boldenone is by intra-muscular injection. They contend that the boldenone came from what has been described as mouldy oats – that is horse feed which was ingested orally by the subject horses. In support of the position taken for the Defendants Ms Thomas pointed to the following:
(a) A letter dated the 13th September 2011 by Dr Andrew Grierson. This was a letter written to Mr Barry Kitto, a Racecourse Investigator employed by RIU. The letter contains the following passage in the penultimate paragraph:
Boldenone has been recorded as being absorbed by oral administration in ruminants and there is no reason why a horse would not absorb boldenone by this route but there is no literature on the subject. Boldenone is usually administered by way of an intra-muscular injection of an oily solution.
(b) Dr Grierson swore an affidavit on the 8th February 2012. He was not required for cross examination upon that document. He repeated the same assertion that was made in his letter of the 13th September last. Further he made certain calculations following advice that boldenone had been detected in oats at 3.7milligrams per kilogram. This is a reference to the Asure Quality test of the 1st February 2012. Reference is made to that in paragraph 1.5 above. Dr Grierson expressed his view on this issue in these terms:
“If then a horse was fed 5kg of oats containing 3.7milligrams per Kg of boldenone for several days it is possible for the urinary level of boldenone to rise over a detectable level of 2milligrams per litre. In balance I am not aware of any positive swabs from feeding oats to horses in any country to date”.
Dr Grierson, in his affidavit, explained that boldenone has been found in dried faeces and faecal contaminated hair and skin of cattle. He went on to express the opinion that faecal contamination would not occur when taking a urine sample from a racehorse.
Dr Grierson’s final view expressed in the last paragraph of his affidavit of the 8th February 2012 was as follows:
“In my opinion based on the current scientific knowledge the positive swab for boldenone for Surreal Moment and Lite Bourbon could have arisen from an intra-muscular injection, however an oral source of boldenone cannot be ruled out”.
(c) As noted Dr Beresford had furnished a detailed brief of evidence. This was signed and handed forward at the hearing on the 9th February and Dr Beresford was questioned upon it. It is appropriate to record that the witness, with the agreement of counsel, had spoken with Asure Quality and was satisfied that the method used for taking the food sample was valid notwithstanding that the certificate on its face contains the expression “the method used is not validated by this matrix”.
Ms Thomas criticised the testing process as not involving a quantitative analysis. Dr Beresford explained that quantitative analysis has not been undertaken for the harness racing code and he provided reasons for this: refer paragraphs 11 to 15. Dr Beresford gave his opinion as follows:
“In these boldenone cases, it is not possible to make an assessment of the relative levels of boldenone from the instrument response in a series of urine samples from the same animal. The instrument response varies with the variability of the urine matrix of each sample (the reasons for this variability having been explained above) so the same concentration of boldenone could give a markedly different response in two (2) different urine samples. This is not corrected for in a qualitative analysis whereas it would be for a quantitative analysis”.
Dr Beresford recounted his discussions with Mr Bell who had obtained an earlier analysis from Asure Quality (the first test). The certificate for this first test is dated 23rd September 2011. That result was reported as negative. It was significantly below the threshold level of the test which Asure Quality undertook and the substance could not be identified. Dr Beresford opined that it is in the nature of medical testing a substance may be present in a sample at the level below the detection limit but pointed out that the certificate from this first test from Asure Quality stated that boldenone was not detected. In Dr Beresford’s opinion boldenone was not present in the feed sample or if it was then at a level of less than four (4) parts per billion. In Dr Beresford’s view even if boldenone were present at that level he knew of no case this could result in the detection of boldenone in the urine sample. It is important to note that the first sample or first test of which Dr Beresford was speaking was provided by Brendon Bell for Asure Quality and was described as mixed feed. The second sample which is the subject of the certificate of the 1st February 2012 is described as whole oats.
It is appropriate to repeat the last three (3) paragraphs of Dr Beresford’s brief of evidence.
22. The detection limits calculated for the mixed feed sample (the first report) are much higher than for oats alone (the second report) because of background impurities in the matrix. Because oats were only part of the first sample and because of higher detection limit, boldenone was not detected in the mixed sample whereas it was detected in the oats when analysed on its own.
23. What is not known is whether oats always have boldenone in them or not. To date I have been unable to locate any research on this.
24. In conclusion, the analytical results of urine samples taken from the horses are consistent with conventional administration of a therapeutic preparation. However, it cannot be scientifically excluded that the contaminant in the feed could elevate boldenone in a horse’s urine. To the best of my knowledge at this time, there have been no instances in New Zealand or internationally where boldenone has been detected in equine urine samples as a result of consumption of contaminated feed. An extensive study would be required to establish which feeds and what circumstances give rise to detectable boldenone levels in the feeds and whether this level of contamination can give rise to detectable levels of boldenone in equine urine samples.
2.3 Mr Lange for the RIU accepted that the analysis undertaken by Asure Quality which resulted in the certificate of the 1st February 2012 was valid. In answer to questions from the Committee concerning the time that had gone by since the positive samples were taken in June and July 2011 and the whole oats were analysed in January 2012 Mr Lange accepted that the food analysed was from the same batch that had been fed to the horses at the material times.
2.4 Ms Thomas outlined a number of other factors which she submitted pointed to the food as the source of the boldenone. These were:
(a) A number of horses in the Lee Bros stable were tested between the 6th February 2011 and the 23rd November 2011. The first of these tests was undertaken by the RIU upon the horse Hugo Seelster on the 2nd February 2011 and produced a negative result. The committee was told that the horse was being fed from different oats than those which were fed to Surreal Moment and Lite Bourbon. After the positive tests to those two horses further tests were undertaken, some under the supervision of the RIU and others by Mr Bell. In most instances the results were positive but on some occasions negative. There was evidence that the negative results occurred when the horses were spelling and away from the stables. It was submitted that these inconsistent results supported the proposition that the boldenone had come from the food at the stables.
(b) The request by the Lee Bros that a second test be taken for Lite Bourbon was consistent with their strongly held belief that the boldenone came from feed and not from intentional administration. Ms Thomas submitted that had the Lee Bros been involved in the intentional administration of boldenone then they would not have requested a second sample from Lite Bourbon. That second test took place under the supervision of Mr Barry Kitto, a Racecourse Investigator employed by RIU on the 30th July 2011 and produced a positive result.
(c) A large number of character references were put before the Committee. All of these spoke of the good character of the Lee Bros and many said they (the Lee Bros) would not wilfully breach the Rules of Harness Racing.
(d) Ms Thomas emphasised the lengths which the Lee Bros had gone to in order to prove their proposition that boldenone came from the food. She described their conduct as dogged. She pointed to the amount of money which they had spent. The Committee was shown veterinary bills totalling several thousand dollars.
(e) It was submitted that on the state of the evidence it would not be proper to conclude that the boldenone had come from both inter muscular injection and the mouldy oats at the same time. Ms Thomas contended that a conclusion of this kind would require a very high degree of improbability.
3. THE POSITION TAKEN FOR RIU
3.1 Mr Lange acknowledged that the summary of facts in paragraph 15 was not consistent with Dr Grierson’s letter of the 13th September 2011. Further he acknowledged that it was not consistent with Dr Grierson’s affidavit of 8th February 2012. Mr Lange contended the Committee was not required to make a positive determination of how boldenone came to enter the subject horses. Further, Mr Lange submitted if the Committee were to embark upon such an exercise the evidence relied upon by the Defendants was not sufficiently persuasive to meet the test laid down under the rules - Rules 1005 and 1008 provide:
1005 Any exception , exemption, proviso, excuse or qualification, whether it does or does not accompany the description of the Rules, may be proved by the defendant, but need not be negatived in the information, and, whether or not it is so negative, no proof in relation to the matter shall be required on the part of the informant.
1008 In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:-
(a) it shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule; and
(b) any breach of a Rule shall be considered as an offence of strict liability.
3.2 With reference to the scientific and veterinary evidence Mr Lange emphasised that nowhere in the literature is there any documented evidence of boldenone having been found in equine animals in consequence of ingestion of food. This lack of scientific information was acknowledged by Mr Bell in answer to questions in cross examination. It is also referred to in the evidence of Dr Beresford. Mr Lange contended that there was, at best a possibility that some boldenone may have come from the horse food but that there was no adequate evidence to positively demonstrate that proposition.
3.3 Further with reference to the standard or burden of proof Mr Lange advanced two (2) propositions. The first was that by reference to the veterinary evidence and any other material that might point to oral administration the Committee must undertake what he described as “a judgment test”. The second submission was that if there was an aggravating factor to be positively found, such as deliberate administration of the prohibited substance, then proof of that conduct would require to be positive and/or compelling.
3.4 Rule 1008A expressly provides for the standard of proof that is required. It states:
1008A Where in any proceeding, any matter is required to be proved by an informant or defendant, the standard of proof shall be the balance of probabilities.
4. DISCUSSION
4.1 Ms Thomas strenuously submitted that the Committee should make a positive finding that the boldenone came from the mouldy oats. The submission was coupled with the proposition that Messrs Lee or others had not administered boldenone to Surreal Moment and Lite Bourbon.
4.2 To accept the submission advanced for Messrs Lee the Committee must be satisfied on the balance of probabilities that the boldenone came from the food source rather than by intra muscular injection. In our view the evidence called for RIU may allow for the possibility that boldenone came from the food ingested by the two (2) horses. The evidence does not unequivocally state the horse food was in fact the source of the boldenone. It does no more than acknowledge that this may have been possible. The evidence called for Messrs Lee did not provide any positive evidence that the boldenone must have come from the food. We are mindful that nowhere in the literature consulted by Dr Beresford or by Dr Grierson is there any established case of boldenone having been found in horses in consequence of the feed which they have ingested. Mr Bell told the Committee that he too had researched the position and could not find any literature to support the proposition that boldenone found in horses came from the food which they had ingested.
4.3 We are also conscious that there were two (2) tests of the food. The first produced no positive finding. The second, many months later, was confined to oats alone. It did provide a positive reading for boldenone. It does not follow however that on the occasions of the tests on the 23rd June and the 12th July 2011 boldenone came from the food which the horses had ingested.
4.4 The Committee does not have before it any evidence that goes beyond raising the possibility that boldenone may have been in the food and that this may have raised the level of that substance in the urine samples. To reach the standard of proof on the balance of probabilities it is necessary to determine, in the case of competing explanations, that one is more probable, on balance, then the other. If there is no principled basis for preferring one proposition over the other then no positive finding can be made. The Committee finds itself in that position.
4.5 All other considerations aside it is not necessary to determine the manner in which boldenone entered the horses. The manner of administration or ingestion is not an element of the offence.
4.6 In as much as the summary of facts presented on the 19th December asserted, by paragraph 15, that boldenone must have been administered by intra muscular injection that assertion must now be read in light of these comments.
5. PENALTY
5.1 Ms Thomas pressed upon the Committee the effect of these proceedings upon the Defendants’ reputations. We accept that each is of good reputation. With the Committee not able to make a positive determination of how boldenone came into the horses the reputation submission is of less significance. The Committee accepts (as does the RIU) that there is no evidence of any direct involvement by either of the Defendants. In this regard it is appropriate to refer to a passage in the Court of Appeal judgment in McI v NZ Greyhound Racing Association Inc, C of A, 31 October 2000. In that case the Appellant placed great emphasis upon his reputation and standing in the industry. The Court of Appeal stated at paragraph 7:
The reason why Mr McI has appealed to this Court, notwithstanding three previously unsuccessful arguments, is that he perceives himself as having a “doping conviction” damaging to his reputation and standing in the industry which is unjust when he took all reasonable care. He runs a large-scale greyhound training operation. In the previous racing season he had a total of 568 starts with greyhounds at Christchurch alone with no other reported irregularities. He regards the “conviction” as a serious strain on his character and integrity which leaves him perceived as no different from those convicted of wilfully using drugs in the industry. But that is a wholly unjustified reaction. If, contrary to his contention and as we uphold, the rule is broad enough to capture those who take to a racecourse a greyhound to which has been accidentally administered substances that result in the detection of traces of drugs to which the rules apply, even where all reasonable care has been taken, the rule is one directed to ensuring that the animals race on even terms, not one just directed to intentional doping.
5.2 Ms Thomas also emphasised the following:
(a) That the RIU found no boldenone at the Defendants’ stables.
(b) The Defendants had been fully co-operative throughout the inquiry. Reference has already been made to the request for a second sample from the horse Lite Bourbon.
(c) The Defendants had pleaded guilty.
(d) The level of boldenone was found at low levels.
(e) That there would necessarily be a loss of stake money due to the mandatory disqualification that must take place under Rule 1004(D).
(f) That the Defendants have an unblemished record. This submission ties in with that relating to the Defendants’ reputation.
The Committee accepts that all of these matters are legitimate considerations in fixing the level of penalty.
5.3 For the RIU Mr Lange emphasised these matters:
(a) That the status of the races was not significant and the stakes payable to the two (2) horses were modest.
(b) There was no direct evidence of administration of boldenone by either of the Defendants.
(c) As to the nature of the penalty to be imposed attention was drawn to the comments of the Supreme Court in Z v Complaints Assessment Committee [2009] 1 NZLR 1, McGrath J at paragraph 97:
“... the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure appropriate standards of conduct are maintained in the occupation concerned”.
(d) The clear record of the Lee Bros was accepted.
(e) No disqualification of either of the Defendants was sought.
5.4 Counsel helpfully referred the Committee to a number of decided cases upon penalty. None however involved boldenone or the unique circumstances of this case.
5.5 Both counsel submitted that modest financial penalties would be appropriate. We note that at the commencement of the proceedings Mr Lange was seeking a significantly greater fine in each case. The Committee agrees that the financial penalties should be relatively modest.
6. COSTS
6.1 There were a number of competing submissions made. These can be summarised as follows:
(a) Mr Lange for the RIU submitted that costs should lie where they fall.
(b) Mr Lange acknowledged that the paragraph in the summary of facts to which objection was taken could not now be accepted in the form in which it was originally advanced.
(c) Ms Thomas emphasised that the Lee Bros had incurred significant expense and sought a contribution from the RIU. There was criticism of the RIU not undertaking independent tests of the food. The RIU was under no obligation to do that. The expense incurred by the Lee Bros did not result from the actions of the RIU, rather from the course of inquiry which they chose to pursue and the state of scientific or veterinary knowledge as it stood in mid 2011.
(d) Ms Thomas accepted Dr Beresford’s behaviour throughout had been beyond criticism. The Committee for its part acknowledges Dr Beresford consulted widely with professional colleagues and conducted himself with integrity.
(e) Mr Lange pointed to the RIU incurring considerable costs in having to obtain further material from Drs Beresford and Grierson and in flying Dr Beresford from Auckland to the resumed hearing in Wellington.
6.2 It is necessary to comment about the late brief from Mr Bell. As soon as the brief was read it was apparent that the Defendants would seek to have the Committee determine that boldenone had entered the horses through their feed; notwithstanding there was no evidence of this having occurred previously nor had Mr Bell been able to discover evidence of this beyond his own experience. The proposition that the breach of the prohibited substance rule arose from food has not been demonstrated by the Defendants upon the balance of probabilities. The hearing of this proceeding has been greatly extended by the efforts that the Defendants have made to demonstrate that proposition. It was necessary to adjourn the hearing and resume at the Wellington venue. Where a party to proceedings seeks to advance a proposition which it asserts is central to its case and fails to demonstrate that then this circumstance and the time taken for the hearing must come to account when fixing costs. The Committee considers that had Mr Bell’s evidence been made available earlier it ought to have been possible to have dealt with this matter uninterrupted.
6.3 The Committee accepts that the Lee Bros had spent many thousands of dollars on this case. A great deal of that on veterinary advice and in having the food from their stable analysed. It would however be a unique circumstance and hardly appropriate to contemplate a costs award in favour of parties who have pleaded guilty to a breach of the prohibited substance Rules of Harness Racing. The explanation put forward that boldenone came from the food has not been rejected “out of hand” - rather, as earlier explained, we are not satisfied that this explanation has reached the required standard of proof on the balance of probabilities.
6.4 It can be seen that there were many competing submissions on the costs question as between the parties. For the reasons set out here we decline to make any costs award either way: thus costs inter partes shall, in this case, lie where they fall.
6.5 There remains the question of the costs of the Judicial Control Authority (JCA). Given the protracted nature of this hearing and the reasons for that as explained above, in particular the late filing of the brief of the Veterinarian Mr Bell, the JCA has incurred significant costs. Ordinarily the JCA does not seek to recover costs from an unsuccessful party, or a party who has pleaded guilty, upon an indemnity basis. That practice will not be departed from here but the Committee considers there should be a meaningful contribution towards the costs by the Defendants. The Lee Bros will be ordered to pay the sum of $2,000.00 towards the costs of the JCA. As to how that sum is to be paid as between the Defendants and their counsel is a matter for them.
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7 RESULT
7.1 Colin Frederick Lee and Gordon James Lee training in partnership under the NZ Rules of Harness Racing have pleaded guilty to informations alleging breaches of Rule 1004(1)(2)(4) on the 23rd June 2011 as the trainers of Surreal Moment and a breach of Rules 1004(1)(2)(4) as the trainers of Lite Bourbon on the 12th July 2011 and shall be convicted on each charge. On each charge each Defendant will be fined the sum of $300.00 thus a total for each Defendant of $600.00.
7.2 There will be no costs payable by Messrs Lee to the RIU.
7.3 Messrs Lee will pay a contribution towards the costs of the JCA in the sum of $2,000.00.
7.4 By rule 1004(D) there will be a mandatory disqualification of Surreal Moment on the 23rd June 2011 in Race 1 at Forbury Park. Likewise there will be a disqualification of Lite Bourbon from Race 4 at Forbury Park on the 12th July 2011. If the stake money has been paid out it shall be refunded to Harness Racing New Zealand. The placings in each race shall be amended in accordance with this decision.
Dated this 28th day of February 2012
_______________________________________
Murray McKechnie
Chairman
Pursuant to Rule 1114(6)
hearing_type: Non-race day
Rules: 1004(1)(2) and (4)
Informant: Mr B Kitto
JockeysandTrainer:
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PersonPresent: Mr C Lange - for RIU, Ms M_J Thomas and Mr Donnelly for Messrs Lee
Respondent: Messrs GJ and CF Lee
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