Non Raceday Inquiry – RIU v LJ Justice – August 2011 – Ruling of Judicial Committee 31 October2011

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hearing_title: Non Raceday Inquiry - RIU v LJ Justice - August 2011 - Ruling of Judicial Committee 31 October2011

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Decision:

HRNZ v L J JUSTICE
Hearing before Non Raceday Judicial Committee

Judicial Committee:  Mr Bruce Squire QC (Chairman) - Professor Geoffrey Hall

Counsel: Mr C J Lange – Counsel for HRNZ - Ms M J Thomas and Mr R Donnelly – Counsel for Mr Justice

RULING OF JUDICIAL COMMITTEE

1. Introduction

1.1 This Ruling arises from the objection taken by Ms Thomas to the admissibility of the evidence of Mark William Jarrett an Analyst employed by the Racing Science Centre in Queensland Australia. In order to understand the context in which Ms Thomas' objection was made, it is necessary to set out in a little detail Mr Jarrett's evidence and the circumstances in which it was obtained and is relied on by the Informant in this case.

1.2 Mr Justice was the trainer of a horse named "Smoken Up" which ran in, and won, the Pacers Final at the Inter Dominion Race Series conducted by the New Zealand Metropolitan Trotting Club at Alexandra Park in Auckland on Friday 8 April 2011. The race started at approximately 9:43 pm that evening and finished a little over three minutes later. The first five placed horses in the race were required for post race swabbing. For that purpose "Smoken Up" was taken to the swabbing box and at 10:10 pm a urine sample was taken from the horse. The evidence from the Informant is that the urine sample was take in accordance with the required protocols.

1.3 On 11 April 2011 the sample taken from "Smoken Up" was delivered to New Zealand Racing Laboratory Services Limited's laboratory located in Avondale, Auckland. There the sample was analysed. For present purposes it is sufficient to record the analysis revealed the urine sample provided by "Smoken Up" on the evening of 8 April revealed the presence of Dimethyl Sulphoxide (DMSO) at a level of 25.8mg/L. DMSO at a concentration exceeding 15mg/L in urine is a Prohibited Substance under the New Zealand Rules of Harness Racing ("the Rules").

1.4 On 21 April 2011 Mr Justice was interviewed by Mr T R Carmichael, the Chief Racing Investigator employed by the Racing Integrity Unit. The interview took place at Mr Justice's stables at Melton, Australia. According to Mr Carmichael's evidence Mr Justice was handed a copy of a Certificate of Analysis provided by the New Zealand Racing Laboratory Services Limited which showed the result of the analysis of the urine sample taken from "Smoken Up" on the evening of 8 April as recorded earlier. In the course of the interview which followed with Mr Carmichael Mr Justice requested an analysis be carried out of the reserve sample taken from "Smoken Up" and subsequently as a result of that request the reserve sample was sent to the Racing Science Centre in Queensland where it was analysed by Mr Jarrett. Mr Jarrett's evidence was that the reserve sample was received on 6 May 2011 and analysed on four separate occasions returning a DMSO level, the average of the four readings taken, of 25.2mg/L.

1.5 Subsequently an Information was laid against Mr Justice under the Rules alleging breaches of Rules 1004(1) and 1004(2). The breaches related to the presentation of "Smoken Up" for the pacing final at the Inter Dominion Pacing Championships on 8 April 2011 when the horse was not free of a prohibited substance. The allegation is based on the results of the analyses carried out by the New Zealand Racing Laboratory and the Racing Science Laboratory in Queensland as to the level of DMSO found in the urine samples taken from the horse as outlined previously. The Information was served on Mr Justice on 14 June 2011.

1.6 Following service of the Information Counsel for Mr Justice made a number of requests for disclosure. In each case the request was made to Counsel for the Informant. One such request was made in a letter from Counsel dated 18 July 2011. The letter is numbered "39" in a bundle of documents provided to the Committee by Ms Thomas. The letter in the bundle does not appear to be complete but what there is of it extends to 7 ½ pages of requests covering a significant range of matters including material from the Racing Science Laboratory in Queensland relating to the operating procedures and processes of that Laboratory. Subsequently on 27 July Counsel for the Informant received a letter from Dr Beresford of the New Zealand Racing Laboratory Services Limited in which concern was expressed as to the breadth of the material Ms Thomas had requested by way of disclosure. In the letter Dr Beresford expressed confidence the Racing Science Centre in Queensland would have similar concerns to those he expressed as to the extent of disclosure sought. The upshot was that on 3 August 2011 Ms Thomas sent an email to Counsel for the Informant in which she endeavoured to refine and narrow the material sought by way of disclosure, which nonetheless appears from the document itself to have been still extensive.

1.7 Subsequently on or about 16 August 2011 the Director of the Racing Science Centre in Queensland sent an email, (the Committee assumes the email was sent to Counsel for the Informant as only the second and third pages of the email have been provided) in which he indicated the request from Ms Thomas for disclosure was "far more than is reasonable and provides no analytical basis for their request". The Director's email went on to point out there was an unacceptable risk of undermining the effectiveness of racing drug control by providing confidential details of analytical methods, laboratory procedures and protocols for public debate if the request for disclosure by Ms Thomas was complied with to the extent sought. He pointed out the methods used by the Laboratory were NATA certified and similar requests for disclosure in Queensland had been refused on the basis it was not in the public interest to provide disclosure of the kind sought by Ms Thomas as it would pose too great a risk in the ongoing effectiveness of drug control in racing. He pointed out that Mr Jarrett would be available to assist the inquiry and address any comments made on the Racing Science Centres findings.

1.8 Ms Thomas raised her objection at the commencement of the hearing of the Information laid against Mr Justice and we heard argument from both Counsel. Having done so we concluded the issue of admissibility of Mr Jarrett's evidence was best left until later in the proceedings when we had heard evidence to cover the possibility the evidence might contain material relevant to the determination of Ms Thomas' objection. For that reason rather than determining the issue at the outset we permitted the hearing to proceed and received Mr Jarrett's evidence when he gave it by way of audio link facility on a de bene esse basis subject to further consideration of, and ruling on Ms Thomas' objection. Ms Thomas elected not to cross-examine Mr Jarrett.

1.9 In the course of submissions from Counsel it further emerged:

• Ms Thomas had received a copy of the Certificate of Analysis in relation to the reserve sample;

• She had challenged the admissibility of that Certificate of Analysis;

• As a result of the challenge to the Certificate of Analysis the Informant had arranged for Mr Jarrett to give viva voce evidence at the request of Ms Thomas.

2. The Submissions of Counsel:

2.1 The essence of Ms Thomas' submissions was that the refusal of the Racing Science Centre to provide her with the disclosure she sought prevented her from carrying out any meaningful enquiry and adducing evidence as to the methods and processes used by Mr Jarrett in carrying out his analysis of the reserve sample. She submitted that in the absence of such information no adequate checks could be made to ensure the results obtained by Mr Jarrett were accurate or obtained by a process which complied with the required protocols. She drew attention to HRNZ's Regulations relating to Notification of Analysis from Samples pointing out the Regulations required the reserve sample to be analysed by a laboratory approved by HRNZ after a request had been received from the owner, his authorised representative or the trainer. The Regulations further required the results of the analysis to be returned to the person who had requested the analysis and HRNZ. Ms Thomas' submission was these regulatory requirements implicitly recognise a person entitled to the result of the analysis of the reserve sample, must also be entitled to relevant documentation and materials bearing on the processes and protocols adopted and applied in conducting the analysis and that the responsibility for providing such documentation and materials lay with the Informant HRNZ as the body which selects and approves the laboratory to carry out the analysis of the reserve sample. In this case it was Mr Justice who required the sample to be sent to the Queensland Laboratory for analysis.

2.2 Ms Thomas submitted the failure of the Racing Science Centre to provide anything by way of disclosure, other than the Certificate of Analysis recording the results of Mr Jarrett's analysis of the reserve sample, prevented proper enquiry being made by her as to the methods and protocols used in carrying out the analysis and reaching the result certified. As a result she submitted the Informant should not be permitted to introduce and rely on evidence from Mr Jarrett as to the result of his analysis.

2.3 In reply Mr Lange submitted the legal position was clear. In short he submitted that HRNZ as the Informant was under no legal obligation to provide disclosure of the materials held by the Racing Science Centre which he contended was in relation to the Informant, a third party. In support of that proposition he cited by way of analogy the case of Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 447 in which reference is made to Attorney General v Otahuhu District Court [2001] 3 NZLR 740. Mr Lange submitted if Ms Thomas required documentation from the Racing Science Centre to properly address matters relating to the findings of Mr Jarrett as disclosed in the Certificate of Analysis, the proper course was for the witness summons procedure provided for in the Rules to be invoked. In that context he submitted the obligations of the Racing Science Centre to provide disclosure, and if so to what extent, could properly be determined by the Judicial Committee.

3. Discussion:

3.1 We are satisfied that in terms of the authorities cited by Mr Lange the Racing Science Centre should properly be regarded as a third party in its relationship with the Informant. Except to the extent referred to in relation to notification of the result of the initial analysis and of the reserve sample referred to in the Regulations, neither the Rules or the Regulations provide for pre-hearing disclosure. The Rules do permit the Judicial Committee to determine its procedure and the conduct of a hearing before it as it thinks fit but we doubt those provisions confer, even by implication, powers to order pre-hearing disclosure. The only available power to require the production of documents or materials appears to be the witness summons procedure provided for in Rule 1111 (8) which is confined to the production of documents and materials by a person required to appear as a witness before the Judicial Committee to answer questions. We do not accept the submission made by Mr Lange that the witness summons procedure could have been invoked in this case to secure pre-hearing disclosure from the Racing Science Centre. In our view it is clear that the witness summons procedure may not be used as a means of obtaining pre-hearing disclosure from third parties (Livingstone v Institute of Environmental Science [2003] 20 CRNZ 253 para [63]).

3.2 For those reasons it seems to be the position that pre-hearing disclosure requirements are, and have been in the past, met generally simply by cooperation between Counsel and the parties who have been requested to make disclosure. Here however the Racing Science Centre has refused to make disclosure in the terms requested by Ms Thomas for the reasons outlined and in the absence of any power enabling the Committee to do so it cannot order the Racing Science Centre to make disclosure. Nor, it might be added, does the Committee have power to order any other third party to do so.

3.3 The question then is whether in those circumstances the Committee should rule the evidence of Mr Jarrett inadmissible on the basis the Racing Science Centre has refused to provide disclosure of materials to Counsel it was under no legal obligation to disclose either directly or by reason of the arrangements by which it came to undertake the analysis of the reserve sample.

3.4 Under Rule 1111 (1)(b) the Committee has the discretion to admit any evidence it deems relevant whether admissible in a Court of Law or not. The intent of that Rule we believe is to enable the Committee to reach a fair and just result in any given case by reference to any relevant evidence without being limited by the strict rules of evidence which apply in the Courts. The discretion to admit relevant evidence must also encompass the power to rule it inadmissible where there are justifiable grounds for doing so. But because of the philosophy which underpins Rule 1111 (1)(b) we do not think the discretion is required to be exercised according to the evidential principles which apply in the Courts. Rather we think a broader approach in which the guiding principle is basic fairness within the forensic context is the appropriate approach and one which is consistent with the philosophy which underpins Rule 1111 (1)(b). That does not mean however the discretion conferred by the Rule is entirely without limitation. Fairness within the forensic context is almost always a two-way street and the grounds for ruling evidence inadmissible in any given case will need to have a proper evidential basis.

3.5 In her submissions Ms Thomas was insistent her request for pre-hearing disclosure by the Racing Science Centre was not simply a "fishing expedition" as she put it. That may be so but the impression we have from the correspondence we have seen is that her requests were without question extensive and seemingly not focussed on any particular aspect of Mr Jarrett's analysis and the processes he went through which might have given rise to concern. Further, when Mr Jarrett gave evidence of the results of his analysis Ms Thomas declined to raise with him in cross examination any concerns about any aspects of the analysis he carried out and the results he reached. Ms Thomas adopted this course despite having cross examined Mr Gardner and Dr Beresford of the New Zealand Racing Laboratory about the methods and processes of analysis utilised by that Laboratory and later leading evidence from her own expert, Dr Denis Lauren, who was critical of the results of the quantitative analysis obtained by the New Zealand Laboratory for the range of reasons he explained in his evidence, and who, by implication, based on an assumption the Racing Science Centre Laboratory used similar analytical techniques as the New Zealand Laboratory, was similarly critical of the quantitative results obtained by that Laboratory. None of Dr Lauren's criticisms were put to Mr Jarrett in cross examination and of course he had no opportunity to comment on them.

3.6 Ms Thomas' explanation for failing to cross examine Mr Jarrett about the criticisms made by Dr Lauren would presumably be that in the absence of being provided with the disclosure by the Racing Science Centre Laboratory she had sought, there was no basis upon which she could have effectively done so. If that was the position she was in, it rather tends to suggest her requests for disclosure might have been more in the nature of a "fishing expedition" than she was prepared to acknowledge, but whether that is so or not, we think there was ample opportunity for her to put to Mr Jarrett the issues of concern about methodology and process she later led in evidence from Dr Lauren, and in fairness, and in accordance with standard practice she ought to have done so.

3.7 In the result we are left with the criticisms of Dr Lauren to which Mr Jarrett has had no opportunity to reply accompanied by the failure of the Racing Science Centre Laboratory to make the disclosure sought by Ms Thomas. In those circumstances we are not satisfied it would be unfair to admit Mr Jarrett's evidence. In order to do so on the basis submitted by Ms Thomas we would need to conclude there was some reason to suspect that within the material the Racing Science Centre refused to disclose to Ms Thomas was something which would have compromised the accuracy and validity of the analysis carried out by Mr Jarrett and the results he reached. But Ms Thomas declined to confront Mr Jarrett with the evidence she had, and later led from Dr Lauren about such issues or even more generally about the methodology and process adopted by the Racing Science Centre Laboratory. Accordingly to reach that conclusion on the state of the evidence before us would require the Committee to act on speculation rather than evidence and we do not think that is a proper discharge of our function.

4. Result:

4.1 For the reasons outlined we do not uphold the objection to the admissibility of Mr Jarrett's evidence.

DATED at Wellington this 31st day of October 2011

_________________________
Bruce Squire QC (Chairman)

_________________________
Professor Geoffrey Hall
 

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