Non Raceday Inquiry RIU v J T Keast and H Westrum 3 October 2013 – Decision dated 21 October 2013

hearingid: 4f3d9af13486cb9c2c35143b9f1b1695

informantnumber: A5010

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decisiondate: 09/10/2013

hearing_title: Non Raceday Inquiry RIU v J T Keast and H Westrum 3 October 2013 - Decision dated 21 October 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information No. A5010

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

Informant

AND JAMES TERRE KEAST and HENRIETTE WESTRUM of Amberley

Licensed Public Trainers (Partnership)

Respondents

Date of Hearing: Thursday, 3rd October 2013.

Venue: Judicial Room, Addington Raceway, Christchurch

Judicial Committee: R G McKenzie, Chair - P Knowles, Committee Member

Present: Mrs K R Williams, the Informant

Mr J T Keast & Ms H Westrum, the Respondents

Mr S W Wallis, Registrar

Mr N G McIntyre, Co-Chief Stipendiary Steward

Mr R D Scott, Racecourse Investigator

Date of Decision: 21 October 2013

RESERVED DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A5010 alleges as follows:

(1) THAT, on the 7th July 2013, James Terre Keast and Henriette Westrum, the trainers and people in charge of WALLY’S GIRL which had been taken to the Timaru Harness Racing Club for the purposes of engaging in a race namely THE BREEDERS GOLDEN GIRLS MOBILE TROT (HEAT 3), Race 6 on the 7th day of July 2013 and that they 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. This is in breach of the Prohibited Substance Rule, Rule 1004 (1), (1A) & (2).

(2) And they are therefore liable to the penalty or penalties which may be imposed in accordance to [sic] Rule 1004 (8) of the New Zealand Rules of Harness Racing.

The Rules

[2] Rule 1004 of the Rules of Harness Racing provides 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.

(3) Where a person is left in charge of a horse, and the 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 and the person left in charge both commit a breach of these Rules.

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

The Plea

[3] The Respondents admitted the charge. The charge was found proved.

Background

[4] On Sunday, 7th July 2013, the Respondents were the persons in charge of the horse, WALLY’S GIRL, which had been taken to the Timaru Harness Racing Club’s meeting at Washdyke Raceway for the purpose of engaging in Race 6 on that day, namely, The Breeders Golden Girls Mobile Trot (Heat 3).

[5] Drug testing was carried out at the meeting and, as a result of that testing, WALLY’S GIRL returned a blood TCO2 level of 37.0 mmol/L. This is in excess of the levels prescribed within the Rules of Harness Racing.

[6] Following an investigation, the Respondents were charged with a breach of the Prohibited Substance Rule in that they failed to present WALLY’S GIRL free of prohibited substances, namely, bicarbonate or other alkali substance.

Summary of Facts of Informant

[7] WALLY’S GIRL is a 5-year-old brown mare (Brylin Boyz–Simon’s Sister) owned by T R Hanlin, H Westrum and S A Keast and trained by the Respondents. She has raced 10 times for 3 wins and 1 placing for stakes of $16,642.

[8] WALLY’S GIRL was correctly entered and presented to race by the Respondents. She was driven in the race by Mr Keast and won, the winning stake being $4,500.

[9] WALLY’S GIRL was TCO2 tested twice by way of the Istat portable screening device before racing. The first sample was taken at 1.55pm and the second sample was taken at 2.20pm.The race was programmed to start at 2.40pm. The second sample was taken after the mare returned a screening level of 35 from the first sample. The second Istat result was 34.

[10] On 10th July, the New Zealand Racing Laboratory reported that the samples forwarded had returned results of 35.7 mmol/L for the first test taken at 1.55pm and 37.0 mmol/L for the test taken at 2.20pm.

[11] On 15th July, Racecourse Investigators Mr Barry Kitto and Mrs Kylie Williams went to the Respondents’ property at 105 Smiths Road, Amberley, and advised them of the elevated TCO2 result returned by WALLY’S GIRL.

[12] Mr Keast advised that he had taken the horse to the races and attended to the horse at the race meeting. Mr Keast denied administration of any alkali by any means to WALLY’S GIRL.

[13] Samples of feed and additives were taken from Mr Keast’s feedroom and forwarded to the Racing Laboratory for testing. The samples taken included products labelled “Baking Soda”.

[14] The laboratory reported:

The items were examined to assess if they could elevate plasma TCO2 levels. Humidimix, Selamin Gold and Equine Electrolyte Extreme all contain carbonate substances. Product brochures for these materials indicate that only a minor proportion of the ingredients are carbonate substances. All three materials theoretically could elevate TCO2 levels above the threshold if given in sufficient quantity.

The samples labelled “Baking Soda” from the two containers appear to be sodium bicarbonate as expected. The two plastic scoops were consistent with the baking soda in the respective containers. Sodium bicarbonate (baking soda) undoubtedly raises plasma TCO2 levels to above threshold if given in doses greater than 250 grams no more than 6 hours before racing. Administering this quantity of sodium bicarbonate would most likely require the use of a naso-gastric tube.

[15] Mr Keast freely admitted that he drenches his horses following strenuous exercise. Drenching equipment and baking soda were found in the feedroom.

[16] In a statement taken from Mr Keast on 15th July 2013, Mr Keast stated:

“I can confirm that the Racecourse Investigators found two containers of bicarbonate of soda on the property as well as a drenching tube and bucket that I mix a saline drench in. I regularly drench any horses that have raced and trialled and also drench horses post fast work if they have had a hard run. In the drench is a mixture of “Humidimix”, “SelaMin Gold”, “Vitaspeed” and about 1 tablespoon of baking soda. I do not tube any of my horses on raceday and WALLY’S GIRL was previously salined on 2nd and 5th July. This was two days before racing”.

[17] A blood sample was taken off WALLY’S GIRL on 15th July 2013 with the Laboratory advising the result as 35.1.

[18] The Respondents could not provide any explanation as to why WALLY’S GIRL’s level came to be elevated and stated that they have 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.

[19] Mrs Williams submitted a report from Mr Andrew Grierson, the Veterinary Advisor for Harness Racing New Zealand. In that report, he wrote:

The Istat machine is a mobile unit with limitations on its accuracy. It is useful in the field to indicate a potential rise above normal in TCO2. In this case, Istat results gave probable cause for taking of the second blood sample on the 7th July 2013 after fielding a suspiciously high reading at 1.55pm at the Timaru races. The New Zealand Racing Laboratory Services reported TCO2 levels are measured by the Beckman El-lse instrument and are accurate. These results are fully validated and provide the official reports of TCO2 from venous blood samples taken from racehorses in New Zealand.

The administration to a horse of alkalizing agents such as sodium bicarbonate raises the TCO2 levels in blood. Profuse sweating, high body temperatures and overtraining have all been recorded as raising TCO2 however these changes to TCO2 are not enough to raise the TCO2 level to 37 mmol/L.

In the paper by D Hibbert and others, for a horse to record a TCO2 level of 37.0 mmol/L, there is a chance of only 1 in 2,020,000 that a nondoped horse will be judged to be doped.

The rise in TCO2 from 35.7 t0 37.0 mmol/L after approximately 25 minutes from two serial bloods taken of WALLY’S GIRL at the races on 7th July supports the premise that an alkalizing agent was administered on the day of racing. In conclusion, I can find no natural physiological reason to explain the elevation of TCO2 to the level of 37.0 mmol/L in WALLY’S GIRL on 7th July 2013. In the Prohibited Substance Regulation of the Rules of Harness racing, TCO2 is a prohibited substance when present at over 35.0 mmol/L (a guard bond of 1.0 mmol/L is in place giving an action level of greater that 36.0 mmol/L detected in venous blood). Therefore, WALLY’S GIRL was presented to the races on 7th July 2013 in breach of these Rules”.

[20] Additionally, the national average for over 30,000 standardbred horses tested for TCO2 is 30.7 mmol/L. The threshold of 35.0 has been placed well above that average and provides a safety margin to account for factors such as pre-race water deprivation, profuse sweating, pre-race transport, excitement causing hyperventilation.

[21] It is not incumbent on the Informant to prove how the substance came to be present in WALLY’S GIRL’s system and gave rise to an elevated TCO2 level. It is an offence of absolute liability (judgment of Whata J in J v HRNZ).

[22] In summary, the RIU submitted that the Respondents have been responsible for presenting WALLY’S GIRL at a level which was in excess of that permitted and an offence has, therefore, been committed and the Rule breached. The Respondents, as the persons responsible for the horse, had a duty to produce it at the races free of any prohibited substances.

Submissions of Respondents

[23] The Respondents admitted that they had presented WALLY’S GIRL at the Timaru races on 7th July 2013 with an elevated TCO2 level. However, they were “adamant” that they did not administer anything to enhance the mare’s performance.

[24] They further denied that they had been careless in the kinds of supplements that the mare was getting in her feed. They explained that she was on a “plain feed” with grain, lucerne hay and “Fibre Pro”, and the only additives to her feed were copper sulphate twice weekly.

[25] They believed that WALLY’S GIRL had returned a high test result on the day for natural reasons beyond their control.

[26] The Respondents advanced the following reasons for WALLY’S GIRL testing high over a long period of time:

(1) Excessive urinating, 2-3 times at home during the times she was in from her paddock to work until she was put back out, 3-4 times when they put her on the float to go to the beach and even more frequently when at the races, depending on how long she was on the float and how long she had to wait at the races.

(2) Severe dehydration due to not drinking and excessive urinating and also “internal health problems” such as kidney dysfunction and deficiency of the enzyme, Vasoactive intestinal peptide, the role of which is to stimulate secretion of water and electrolytes and to stimulate pancreatic bicarbonate secretion.

[27] In support of this, the Respondents referred to a hair test carried out by Vicki Pratt of Bodyworks Health and Wellness and a statement from Di Coutts, Osteopath, (who had treated WALLY’S GIRL on two occasions in April-May) to the effect that the mare urinated to an extent that was abnormal. The mare had urinated “3 or so times” within the hour-long duration of her treatment on each occasion.

[28] The Respondents also produced documentation in support of their submission that severe dehydration and excessive urinating increased the TCO2 level.

[29] They also produced documentation to show that WALLY’S GIRL had consistently tested high. They were made aware of her high raceday readings and, after that, the mare had gone “the race of her life” and set a national record after they made adjustments to her diet by adding sea salt to hay and grain, putting warm molasses water out in her paddock to encourage her to drink and she was 5 days into her homeopathic toxins/remedies treatment from Vicki Pratt. They submitted that the reason that the mare’s TCO2 level on that night was only 33.0 was due to those diet changes and homeopathic testing and treatment.

[30] The Respondents further submitted that they were not frequent purchasers of bicarbonate of soda. They produced a statement from Dawes Grain & Stockfeeds Limited confirming that the Respondents had made no purchase of that product in the period of 3 months prior to 18th July 2013.

[31] Ms Westrum questioned why no post-race test of WALLY’S GIRL was offered or carried out. She said that TCO2 levels increased after a horse had raced. Mrs Williams responded that the RIU was not obliged to carry out post-race testing for TCO2. Effective post-race testing needed to be carried out 2-3 hours after the race and it was not practicable to do so. Ms Westrum submitted that such a test could have helped prove that nothing had been administered to the horse.

[32] Ms Westrum referred to the fact that the visit from the Racecourse Investigators and the testing of WALLY’S GIRL on 15th July 2013 was unannounced. She and Mr Keast, therefore, had not any opportunity to administer to the horse to raise the TCO2 level and thereby support any contention that she had a naturally high TCO2 level.

[33] Ms Westrum submitted that no purchase of bicarbonate of soda had been found in the records of Dawes Grain and Produce.in the preceding 3 months’ period.

[34] The Respondents submitted that it was relevant that the float trip to Timaru on 7th July took 3 hours and WALLY’S GIRL was the last of the horses on that trip to race. The mare’s urine was “running out” of the float when she was unloaded. She urinated another 3-4 times in her box and again while she was being geared up.

[35] Mr Keast produced a paper from Michigan Office of Racing Commissioner, “Understanding TCO2 Testing” where it was stated:

Depending on the cause, dehydration may lead to metabolic alkalosis, which could result in an elevated TCO2 level. Decreased water consumption due to cold weather or deliberate withholding of water for long periods of time could have the same effect.

[36] The Respondents expressed concern that they had not been advised of earlier readings returned by “WALLY’S GIRL”. In particular, the Committee noted, the mare had been tested at 34.5 on 7th June (Nelson); and at 34.1 on 4th July (Addington).

Informant’s Penalty Submissions

[37] Mrs Williams informed the Committee that the Respondents in partnership have no previous record for a breach of the Prohibited Substance Rule. However, Mr Keast was fined $2,000 and costs of $1,200 for a breach of Rule 1004 in August 2004.

[38] The Respondents have been training in partnership as Public Trainers since 2012/2013. They have had 44 starts for 6 wins, 10 seconds and 3 thirds for stakes of over $40,000 as at 25 September 2013. It was submitted that the Respondents could receive no credit for cooperating with the inquiry. Initially, the Respondents elected not to sign the information form or indicate a likely plea until a week prior to this hearing. They then advised that it was their intention to deny the charge. They subsequently advised, two days before the hearing, that they were admitting the charge.

[39] Mrs Williams produced a schedule of penalties imposed for breaches of the Prohibited Substance Rule by way of excessive TCO2 levels since 2001.

[40] Mrs Williams submitted that a fine in the vicinity of $3,000 should be imposed.

41] Mrs Williams sought disqualification of WALLY’S GIRL from 1st placing in the race pursuant to Rule 1004D.

Disqualification of Horse

[42] Rule 1004D provides:

Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.

[43] Pursuant to that Rule, it was ordered that WALLY’S GIRL be disqualified from 1st placing in Race 6, The Breeders Golden Girls Mobile Trot (Heat 3), held at the meeting of Timaru Harness Racing Club on 7th July 2013. Consequent upon the disqualification, the amended result for the race is as follows:

1st Anonymiss
2nd Dragon Lady
3rd Trouble Ado
4th Queen Mary

It was ordered that stakes be paid in accordance with that amended result.

This order was made following the hearing on 3rd October 2013 and was intended to be effective from that date.

Costs

[44] Mrs Williams sought an order that the Respondents pay to the RIU the costs relating to the transcribing of the interview with the Respondents. The Respondents informed the Committee that they had not requested a transcript of that interview. 

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Penalty and Reasons

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

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

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

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

[46] It is implicit in the submissions of the Informant that the high TCO2 level returned by WALLY’S GIRL was the result of an administration by the Respondents or one of them. On the other hand, the submissions presented by the Respondents were directed solely at persuading the Committee that there was no deliberate act on their part which would account for the reading. They vehemently denied administering any substance to the mare which would account for the reading in excess of the level of 35.0 mmol/L permitted by Rule 1004 (1A), with the “uncertainty of measurement” (the expression used by the Informant in her submissions) factor of 1.0 mmol./L.

[47] The Respondents admitted to a breach of the Rule, they said, being aware that absolute liability applies to a breach of Rule 1004. The Respondents advanced a number of factors which could, in their submission, account for the level of 37.0 mmol/L in this case. In the main, they relied on the possibility of dehydration and excessive urinating. They did produce some documentation to support those submissions which, while interesting, was not compelling and the Committee was not persuaded by it. Against the Respondents’ submissions was the statement of Dr A R Grierson, Chief Veterinarian for Harness Racing New Zealand (see paragraph [19] above).

[48] In this case, there was no evidence whatsoever before the Committee that the elevated TCO2 level returned by WALLY’S GIRL was the result of the administration of any alkaline substance to the mare. Neither was there any evidence that the Respondents had been negligent in any degree, which may have given rise to a conclusion that WALLY’S GIRL had ingested some substance administered by a person or persons unknown that has brought about the elevated level. There was no evidence that the Respondents had been negligent in failing to put in place all reasonable security measures.

[49] The Committee has to decide on an appropriate penalty on the basis that it is impossible to determine how the mare came to have an elevated TCO2 reading. The Committee accepts that an assessment of the circumstances in which the prohibited substance came to be present in a horse is an appropriate consideration in assessing culpability for the purpose of arriving at penalty. However, simply put, there was no evidence presented to the Committee in this case to enable us to make such an assessment.

[50] The Committee has gained some assistance from the decision of the Appeals Tribunal in the case of RIU v S (2012). In its decision, the Appeals Tribunal stated:

Where the culpability falls on the spectrum of seriousness is best determined by reference to the extent to which the elevated level is in excess of the statutory limit.

[51] It is appropriate to consider what may be regarded as mitigating factors. The Respondents admitted the breach a couple of days before the hearing. Mrs Williams told the Committee that they had not been cooperative during the course of the investigation and, in particular, they had failed to sign the information or to indicate a plea until 18th September 2013, at which time they indicated that the charge would be defended. The Respondents are entitled to limited credit only for their late admission of the breach as, we accept, the Informant had to prepare for the hearing on the basis that it was to be a defended hearing.

[52] It is helpful to consider the penalties in two recent TCO2 cases. Firstly, the case of RIU v S (2012) in which the penalty of a fine of $2,000 imposed by the Judicial Committee was confirmed on appeal. In that case, the TCO2 reading was 37.2 mmol/L. The trainer admitted the charge and had a clear record. The Appeals Tribunal stated:

We believe the fine of $2,000 is at the bottom of the range that was legitimately open to the Committee. It is thus not inadequate.

[53] The most recent case is that of RIU v C (September 2013). The relevant TCO2 level was 38.3. The trainer was a “hobby trainer”, he admitted the breach and had a clear record. The fine in that case was $2,500.

[54] In neither of the cases referred to was there any evidence of administration.

[55] In the present case, the TCO2 level was 37.0 mmol/L, lower than in either the S or C cases. There was no evidence of administration of a prohibited substance. The Respondents admitted the charge, although belatedly (see para 44 above). The Committee noted that Mr Keast had previously breached the Prohibited Substance Rule in 2004, although Mr Keast assured us that it was not a TCO2 breach and that there were special circumstances. We did not have the details available to us. Having regard to Mr Keast’s assurance and to the fact that it was 9 years ago, we have taken it into account as only a minor aggravating factor.

[56] Weighing up all of the above matters, the Committee is satisfied that the appropriate penalty is a fine of $2,500 and the Respondents are fined the sum of $2,500.

Costs

[57] The Respondents are ordered to pay costs to the Judicial Control Authority in the sum of $700.

R G McKenzie - Chair 

hearing_type: Non-race day

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

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