Non Raceday Inquiry RIU v J T McInerney 15 August 2013 – Reserved Decision dated 4 September 2013

hearingid: b5fac0bf7abe7d1c59a0bf2d9f049369

informantnumber: A5008

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startdate: no date provided

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decisiondate: 01/09/2013

hearing_title: Non Raceday Inquiry RIU v J T McInerney 15 August 2013 - Reserved Decision dated 4 September 2013

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE A JUDICIAL COMMITTEE HELD AT CHRISTCHURCH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association

IN THE MATTER of Information No. A5008

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

Informant

AND JOHN THOMAS McINERNEY of Darfield, Licensed Public Trainer

Respondent

Judicial Committee: R G McKenzie, Chairman - S C Ching, Committee Member

Present:

Mrs K R Williams, the Informant

Mr J T McInerney, the Respondent

Mr R A Quirk, Registrar

Date of Hearing: 15 August 2013

Date of Decision: 4 September 2013

RESERVED DECISION OF JUDICIAL COMMITTEE

The Charge:

[1] Information No.A5008 alleges that:

(1) On the 24th June 2013, John Thomas McInerney, being the registered trainer of the greyhound OPAWA PATCH presented the greyhound to race in Race 10, the Shirley Vet Clinic Stakes Heat, at the Christchurch Greyhound Racing Club meeting with a prohibited substance, namely Caffeine, Theobromine, Theophylline and Paraxanthine, in its system . . in breach of Rule 87.1 and 87.3 of the Greyhound Racing New Zealand Rules; and

(2) On the 4th July 2013, John Thomas McInerney, being the registered trainer of the greyhound RUSSELL HART presented the greyhound to race in Race 8, the Barrons’ Supplies South Island Championship, at the Christchurch Greyhound Racing Club meeting with a prohibited substance, namely Caffeine, Theobromine, Theophylline and Paraxanthine, in its system . . in breach of Rule 87.1 and 87.3 of the Greyhound Racing New Zealand Rules.

[2] Mrs Williams produced a letter signed by Mr M R Godber, General Manager of the Racing Integrity Unit, authorising the lodging of the information.

The Rules:

[3] Rule 87 of the Rules of New Zealand Greyhound Racing Association provides as follows:

87.1 The Owner, Trainer or person in charge of a Greyhound Nominated to compete in an [sic] Race, shall produce the Greyhound for the Race free of any Prohibited Substances.

87.3 Without limiting the provisions of any of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an offence.

The Plea:

[4] The above charges and Rules were read to Mr McInerney and he indicated that he admitted both charges. The charges were found proved accordingly.

Background:

[5] On 26th June 2013, an advisory was released by Malcolm Jansen, NZGRA Veterinary Advisor, and Ross Neal and Nigel McIntyre, Co-Chief Stipendiary Stewards of the RIU making greyhound trainers aware of the concerns in relation to the use of “EPO Canine”, a performance dog supplement. This was e-mailed to all trainers and was also advertised on the Greyhound Racing New Zealand website and various other websites that are accessed by greyhound trainers. This directive was issued after an investigation into a positive swab.

[6] The Distributor in Australia advised in an e-mail to the Respondent on the 5th July 2013 that there may have been a contamination in the product and that they were awaiting the results of a testing of the product.

[7] Mr McInerney informed the Racing Investigators that he administered “EPO Canine” to his greyhounds, two capsules in the morning and two in the evening, even on racedays.

[8] Prior to purchasing the product, Mr McInerney had contacted Biomedical Research Laboratories Limited (BRL) in Australia, to ensure that the product was “safe and legal” and would not result in a positive test.

Summary of Facts (OPAWA PATCH):

[9] Following the race at Addington on 24th June, OPAWA PATCH, which finished 6th and did not earn a stake in the race, was routinely swabbed by the Club’s Veterinarian, Mr Dave Matheson. Mr McInerney did not contest the swabbing process.

[10] In a Certificate of Analysis dated 9th July 2013, the New Zealand Racing Laboratory Services (NZRLS) advised that the urine sample taken from OPAWA PATCH had tested positive to Caffeine and its metabolites Theobromine, Theophylline and Paraxanthine.

[11] On 11th July 2013, Racing Investigators Mr Robin Scott and Mrs Williams, visited Mr McInerney’s property and advised him of the positive swab. Mr McInerney was very cooperative, providing the Investigators with amongst other products, an unopened bottle of “EPO Canine” and a bottle of “EQ Royal” which were forwarded to NZRLS for analysis. NZRLS subsequently reported that the “EPO Canine” had tested positive to caffeine and the sample of “EQ Royal” had tested negative to caffeine.

Summary of Facts (RUSSELL HART):

[12] Following the race at Addington on 4th July, RUSSELL HART, which won the race, was routinely swabbed by the Club’s Veterinarian, Mr Dave Matheson. Mr McInerney did not contest the swabbing process.

[13] In a Certificate of Analysis dated 18th July 2013, the New Zealand Racing Laboratory Services (NZRLS) advised that the urine sample taken from OPAWA PATCH had tested positive to Caffeine and its metabolites Theobromine, Theophylline and Paraxanthine.

[14] Mr McInerney was advised of the positive swab returned by RUSSELL HART and cooperated with the Racing Investigators with respect to all matters regarding the positive test. The Certificate of Analysis from NZRLS was dated 18th July 2013.

General:

[15] It was determined by all of them the Racing Investigators and Mr McInerney that it was highly probable that the cause of both positives was the use of “EPO Canine”.

[16] Despite reports from both NZRLS and its Australian counterpart, the Australian distributor of the product, BRL, has not shifted from its position that the product “EPO Canine” was “safe” and did not contain any caffeine.

[17] BRL has subsequently had the product analysed by Australian Government National Measurement Institute. In brief, that analysis revealed that, while caffeine was present in the product, it was not present in sufficient quantities to result in a positive test.

[18] It should be noted that, while particular focus has been centred on “EPO Canine”, the Investigators have looked fully into any other possible cause or causes for the positive tests but no other possible cause could be found. There appears to be no doubt that Mr McInerney is facing the present charges as a consequence of using the product “EPO Canine”.

The Penalty Rule:

[19] The penalty Rule is Rule 89.1 which provides:

Any person found guilty of an offence under these Rules shall be liable to:

a. A fine not exceeding $10,000.00 for any one offence; and/or

b. Suspension; and/or

c. Disqualification; and/or

d. Warning off.

[20] The Rules also require the mandatory disqualification of the greyhound. Rule 87.4 provides:

Any greyhound which competes in a race and is found to be the recipient of a Prohibited Substance shall be disqualified from that race.

Informant’s Penalty Submissions:

[21] Mrs Williams submitted that Mr McInerney’s culpability should be “assessed above mid-range”.

[22] He had purchased a product which is advertised as capable of affecting performance but which is described as safe because it is undetectable and can be administered to greyhounds before racing.

[23] The definition of “prohibited substances” clearly enunciates what constitutes a prohibited substance and, when referenced against the claims made by BRL, there is most clearly a conflict, especially when it is claimed that the product “increases speed, strength, endurance and recovery”.

[24] It is a misconception of trainers that only substances that are detectable are prohibited, whereas the Rules require a greyhound to be presented substance-free whether the substance is detectable or not.

[25] Mr McInerney, while asking questions as to whether “EPO Canine” was “safe and legal”, has not made adequate enquiry in relation to the use of the product in New Zealand, nor did he enquire from BRL as to whether they had made enquiries of the New Zealand authorities as to the product’s permitted use in this country.

[26] Mr McInerney should have been well aware that the claims made about “EPO Canine” being performance-enhancing meant that its use in New Zealand greyhound racing was prohibited. He has ignored this critical component in his analysis of the product but, rather, has focussed his attention and determination about purchasing it on, simply, whether or not it would give rise to an adverse swab result. In the event, he has acquired and used “EPO Canine” because it was purported to be safe. It was submitted that simply because it was claimed to be “safe” is no defence to justify its use.

[27] Much more care needs to be taken when evaluating and selecting supplements, tonics and remedies to be given to animals. As a consequence of a global change in the mode of sales, more and more products are being sold on the internet by direct marketing and this is of concern. Where once only veterinarians prescribed such products and there was a level of professional advice, this has now been well departed from. Mr McInerney sought no veterinary expertise.

[28] Mr McInerney clearly used the “EPO Canine” with the intention of improving the greyhounds’ performance, otherwise, such a product would not be used.

[29] An aggravating factor was that Mr McInerney continued to use “EPO Canine” after the advisory was issued on 26th June 2013. The positive swab of RUSSELL HART was on 4th July after the issue of that advisory.

[30] To blindly shelter behind claims made about a product without first seeking expert opinion is cavalier at best, and it is clear that, in this case, Mr McInerney has placed reliance solely on the claims made by BRL, an overseas-based company which, in its advertising material, made the claim that the product was safe. This is unacceptable as, regardless of the claims made by BRL, the product did contain a substance capable of affecting performance by way of a prohibited substance. It is clear that Mr McInerney made very little enquiry from any source other than BRL.

[31] Mr McInerney had previously breached Rule 87.1 - in 1997, for presenting a greyhound with procaine in its system, in 2001 for Heptaminol (fined $1,000) in 2010 for Procaine (fined $3,500). Mrs Williams conceded that this record was a good one given the “significant number of runners and commensurate swabs”.

[32] Mitigating factors were Mr McInerney’s open and frank cooperation with the Investigators and that he has been the leading trainer for a number of years and each season races a significant number of greyhounds. In the 2012/2013 season just completed, greyhounds in his care recorded 5,835 starts for 633 wins and 1,383 minor placings. Of these, 320 dogs trained by him were swabbed with only the two greyhounds, the subject of these charges, returning positive swabs.

[33] Penalties for breaches of the Prohibited Substance Rule are usually dealt with by way of a fine. In this case, it was submitted, Mr McInerney’s culpability was “above mid-range”. The circumstances of this case illustrate the real risk to trainers in purchasing such products.

[34] It was submitted that the appropriate starting point should be a period of disqualification where a product with the stated purpose of enhancing performance has been purchased over the internet.

[35] However, in the particular circumstances of this case, it is accepted that Mr McInerney has acted with a mistaken belief that the substance was safe to use, following receipt of erroneous assurances from the manufacturer as to the safety of the product.

[36] Finally, the RIU submitted that it would be open for the Committee to impose a term of disqualification. However, having regard to the mitigating factors, it was submitted that a substantial fine should be imposed but with a warning to the industry that future similar cases are likely to be met with a lengthy period of suspension.

Submissions of the Respondent:

[37] In reply to a question from the Committee, Mr McInerney confirmed that he had been giving “EPO Canine” in the same doses to other racing greyhounds in his kennels. Certain of those runners had been post-race swabbed without returning positive swabs. In Australia, where 70 trainers were using the product, there had been no positive swabs although it had been determined there that the product did contain caffeine.

[38] The product had been prominently advertised in a greyhound racing magazine. It was originally purchased by his son from Garrards Horse and Hound in Australia and further supplies were ordered from that company.

[39] The advisory issued on 26th June 2013 advised that the product should be used with caution, not that it should not be used at all. Mr McInerney submitted that if the product had been analysed with less delay and found to contain caffeine, he would not have used it. The product was advertised as containing no prohibited substances. He has been using the product for some time, 4-5 months he thought, and only two of his runners had returned positive swabs.

[40] The investigation had taken its toll on him and his family, Mr McInerney said. He had never tried to “cheat”. His reputation had been “ruined”. He will not use the product again, he said.

[41] Mr McInerney said that his fellow trainers are friends. He has a large number of dogs and he makes a “reasonable living” when things are “going good”. He has trained for 20 years. He was, and still is, “devastated”, he said.

Reasons for Penalty:

[42] The Committee wishes to record, at the outset, that it is satisfied that the source of the prohibited substance that resulted in these charges against Mr McInerney was the product “EPO Canine”.

[43] The mitigating factors that the Committee took into account in determining penalty in this case are, as submitted by Mrs Williams, Mr McInerney’s admission of the breaches and his cooperation with the Racing Investigators during the course of their enquiries.

[44] While Mr McInerney has previously breached the Rule on three previous occasions (1997, 2001 and 2010), it is accepted by the Committee that he races a large number of greyhounds each season and, looked at in perspective, his record is a very good one. Of course, Mr McInerney has been one of the country’s most prominent and successful trainers of greyhounds for a number of seasons.

[45] Although the Rule itself makes no reference to “negligence”, it is most relevant for a Judicial Committee considering penalty, in a case of a breach or breaches of the Prohibited Substance Rule, to consider the degree of negligence, if any, on the part of the trainer charged.

[46] Mrs Williams has submitted that Mr McInerney’s culpability should be assessed as “above mid-range” that assessment being based on the following:

• He purchased a product which is capable of affecting performance described as “safe” because it is undetectable;

• He failed to make adequate enquiry in relation to the use of “EPO Canine” in New Zealand;

• He should have been aware that claims made about “EPO Canine” being performance-enhancing meant that its use in New Zealand was prohibited; and

• He sought no advice from his veterinarian prior to using the product.

[47] Mr McInerney did not dispute any of those submissions. His response was, essentially, that the product was advertised as “safe and legal” and that it had been used extensively in Australia without any positive swabs being returned as a result of its use.

[48] The Committee agrees with Mrs Williams that it was imprudent of Mr McInerney not to make more exhaustive enquiries prior to using the product, “EPO Canine”, on his racing greyhounds. However, in the Committee’s view, he has been more luckless than negligent. The product had been extensively used in Australia, by 70 trainers we were told, without any positive swabs having been returned. It does appear likely that Mr McInerney, somehow, may have received a batch of the product that was contaminated. The consequences for him are significant – disqualification of the greyhounds, being charged and penalised and, not least, the harm to his reputation. He described his reputation as having been “ruined”.

[49] It is aggravating factor that Mr McInerney started his greyhound, RUSSELL HART, in the Barron’s Supplies South Island Championship, a Group 2 race for a stake of $12,600, on 4 July 2013. This, of course, was after the RIU had issued the advisory document on 26 June. He was, therefore, aware of the problems associated with the use of “EPO Canine” but decided, unwisely as it turned out, to proceed with his plans for RUSSELL HART regardless, no doubt influenced by the stake for the race.

[50] The Committee is conscious, as always, of the need to maintain integrity and public confidence in greyhound racing and the penalty must, therefore, be such that it leaves no doubt as to the very high responsibility placed on trainers to present their greyhounds to race free of any prohibited substance. In addition, any penalty must satisfy all persons associated with the industry, including the betting public, that integrity in greyhound racing is being maintained at the highest level at all times.

[51] In determining penalty, the Committee has not placed too much weight on Mr McInerney’s three previous breaches of the Rule. Apart from the 2010 breach, the breaches are historical. It must be taken into account, in looking at these, the number of runners that Mr McInerney’s kennels have raced in the 16 years since the first of those breaches. We do not have exact figures other than that he raced 5,835 greyhounds in the 2012/2013 season just ended. We take judicial notice of the large number of greyhounds raced from Mr McInerney’s kennels each season.

[52] Mrs Williams, in her submissions, accepted that Mr McInerney’s record was a good one.

[53] The Committee is of the view that the breaches can, on this occasion, be adequately dealt with by the imposition of a fine rather than any period of disqualification. Mrs Williams invited us to impose a fine rather than a term of disqualification. We do not propose to disqualify Mr McInerney, principally, because of the mitigating factors and the rather unusual circumstances of the breaches.

[54] Mrs Williams produced a schedule of penalties handed down by Judicial Committees for breaches of the Prohibited Substance Rule from July 2010. The Committee noted that there was one previous breach involving caffeine – that of B in 2010, in which case a fine of $1,500 was imposed. The levels of fines, involving various other substances, ranged between $1,500 and $3,500. In two cases, the trainer received a period of disqualification.

[55] In the present case, if it involved only a single breach, the Committee is of the view that a fine of $2,000 would be appropriate for that breach. In fact, there are two separate charges against Mr McInerney. However, to impose a fine of $2,000 for each breach – a total of $4,000 – would result in an excessive penalty and the totality principle requires the Committee to ensure that Mr McInerney receives an appropriate overall sentence. It is necessary for us to adjust the total of the fines downward in order to achieve an appropriate relativity between the totality of Mr McInerney’s culpability and the totality of the fines.

sumissionsforpenalty:

reasonsforpenalty:

penalty:

[56] Mr McInerney is fined the total sum of $3,000 on the two charges set out in the Schedule of Charges to Information No.A5008.

Disqualification of Greyhounds:

[57] Rule 87.4 of the Rules of New Zealand Greyhound Racing Association provides:

Any Greyhound which competes in a Race and is found to be the recipient of a prohibited Substance shall be Disqualified from that Race.

[58] That requirement is mandatory.

[59] Accordingly the following orders are made:

(i) OPAWA PATCH (unplaced) is disqualified from Race 10, Shirley Vet Clinic Stakes Heat, held at the Christchurch Greyhound Club’s meeting on 24th June 2013; and

(ii) RUSSELL HART (1st) is disqualified from Race 8, Barron’s Supplies South Island Championship, held at the Christchurch Greyhound Racing Club’s meeting on 4th July 2013. As a consequence of the disqualification, the amended result for the race is as follows:

1st Know Attempt

2nd Indi’s Grace

3rd Know Class

4th Piggy Back

It is ordered that the stake paid to Mr McInerney be repaid to New Zealand Greyhound Racing Association and that stakes for the race be redistributed and paid in accordance with the amended result.

Costs:

[60] Mrs Williams did not seek costs on behalf of the Racing Integrity Unit. Mr McInerney is ordered to pay hearing costs to the Judicial Control Authority in the sum of $350.00.

R G McKENZIE           S C CHING

Chairman                      Committee Member 
 

hearing_type: Non-race day

Rules: 87.1 and 87.3

Informant: Mrs K R Williams - Racing Investigator for the Racing Integrity Unit

JockeysandTrainer:

Otherperson:

PersonPresent: Mrs K R Williams - the Informant, Mr J T McInerney - the Respondent, Mr R A Quirk - Registrar

Respondent: Mr J T McInerney - Licensed Public Trainer

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