Non Raceday Inquiry RIU v RJ Dunn, JR Dunn and CT Smith – Reserved Decision dated 16 January 2017 – Chair, Mr M McKechnie

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decisiondate: 17/01/2017

hearing_title: Non Raceday Inquiry RIU v RJ Dunn, JR Dunn and CT Smith - Reserved Decision dated 16 January 2017 - Chair, Mr M McKechnie

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE A NON RACEDAY JUDICIAL COMMITTEE

IN THE MATTER of the New Zealand Rules of

Harness Racing

BETWEEN

RACING INTEGRITY UNIT (the RIU)

Christopher John Allison

Racing Investigator

INFORMANT

AND

Robert John DUNN, Public Trainer, John Robert DUNN, Open Horseman and Craig Thomas SMITH, Junior Horseman

RESPONDENTS

HEARING AT ALEXANDRA PARK AUCKLAND

16 DAY OF DECEMBER 2016

RESERVED DECISION OF NON-RACEDAY COMMITTEE

DATED THIS 16 DAY OF JANUARY 2017

Mr Murray McKechnie, Chairman

Mr Tangi Utikere, Member

Mr Christopher Lange, Counsel for Racing Integrity Unit

Mr Christopher Allison, Informant

Mr Douglas Alderslade, Counsel for Messrs Robert Dunn, John Dunn and Craig Smith

Also present Messrs Robert Dunn and John Dunn

1. INTRODUCTION

1.1 On 23 June 2016 at Forbury Park in Dunedin a horse named MELINA LOWE won Race 8. This horse subsequently returned a positive test for the prohibited substance Ketoprofen. The horse was trained by Mr Kirk Larsen of Invercargill.

1.2 Following the positive test for Ketoprofen in relation to MELINA LOWE RIU investigators conducted further inquiries. These involved interviewing Mr Robert Dunn, Mr John Dunn and Mr Craig Smith. These interviews and further inquiries led to charges being laid against all three (3) persons alleging a breach of Rule 1004(5) of the New Zealand Rules of Harness Racing. That rule is in the following terms:

No person shall unless they have first obtained the permission of a Stipendiary Steward or Racecourse Inspector, have in their possession either at a race meeting or in any motor vehicle, trailer or float being used for the purpose of travelling to or from a race meeting any prohibited substance.

1.3 On 4 December 2016 there was a telephone conference with the Committee. Mr Lange counsel for Harness Racing New Zealand and Mr Alderslade counsel for Messrs Dunn and Mr Smith advised that following discussion it had been agreed to seek an amendment to the charges against Mr Robert Dunn and Mr John Dunn. The Committee granted the application to amend informations A6635 and A6636 so as to allege against Messrs Robert Dunn and John Dunn that they had together abetted Craig Thomas Smith to without first obtaining from a stipendiary steward or racecourse inspector have in his possession at a race meeting a prohibited substance, an anti-inflammatory, namely Ketoprofen. This was in breach of Rule 1004(5). Following the agreed amendment Mr Alderslade indicated that both Mr Robert Dunn and Mr John Dunn would plead guilty to the charge of aiding and abetting the breach by Mr Smith and that Mr Smith would plead guilty to the alleged breach of Rule 1004(5). Those amendments and pleas were then recorded. Refer minute of the Committee 4 December 2016.

1.4 A summary of facts has been prepared and that is attached to this decision.

1.5 Mr Robert Dunn and Mr John Dunn were present at the hearing today. Mr Craig Smith’s appearance was excused.

1.6 Both Mr Lange for the Informant and Mr Alderslade as counsel for Messrs Dunn and Mr Smith filed detailed submissions. Mr Lange is domiciled in Christchurch. His attendance in person was excused and he attended by telephone link.

2. THE POSITION TAKEN FOR MESSRS DUNN AND MR SMITH

2.1 As the summary of facts explained it has been the practice in the Dunn stable for many years to inject horses post-race with 10mls of Ketoprofen. This to assist in their recovery. The Ketoprofen product is sourced from the Dunn stables regular veterinarian. On 23 June 2016 the horses at Forbury Park were in the charge of Mr Smith. Neither Mr Robert Dunn nor Mr John Dunn were present. The Ketoprofen had been brought on course in a plastic toolbox. This was not secure. The box was placed next to a gear box in front of the boxes and the cross stalls. The Committee was told that the Ketoprofen was in the bottom of the box, not visible and covered by other racing equipment. Further and importantly Mr Smith told the RIU investigation that he did not inject any of the horses with Ketoprofen until after the last race.

2.2 Both Mr John Dunn and Mr Craig Smith said during interview that they were not aware of Rule 1004(5). This rule prohibits anyone from having possession of a prohibited substance on a racecourse unless permission has been obtained from a stipendiary steward or racing investigator. No such permission had been sought or granted in this case. Mr John Dunn said that he believed that his team was staying on course overnight and that in those circumstances the Ketoprofen was permitted.

2.3 Mr Robert Dunn an experienced and senior trainer was asked whether he knew of the relevant rule. The summary of facts recorded that that he was aware of the relevant rule and had previously sought permission to have prohibited substances on course at race meetings at Alexandra Park in Auckland. Mr Alderslade on behalf of Mr Robert Dunn took issue with this passage in the summary of facts and drew the Committee’s attention to the record of interview. The Committee has carefully looked at that. Mr Dunne’s answers to questions on this issue are somewhat equivocal but it seems clear to the Committee that he knew of such a rule even if he did not fully appreciate the circumstances or the occasions when such rule had application. More will be said on this issue in paragraph 4 below.

2.4 Mr Alderslade in his written submissions and in his oral presentation to the Committee emphasised that there was no evidence that any person involved with the Dunn stable had been responsible for injecting Ketoprofen into the horse MELINA LOWE. Mr Smith when interviewed had been adamant that the injection of the Dunn horses did not take place until after the last race had been run. Further that each of the Dunn horses was in its own box and that they wore a distinctive red halter, a red overnight cover and were double-rugged. This said Mr Alderslade would make it very difficult for any person to mistake another horse for a horse from the Dunn stable. The Committee was told that Mr Larsen’s horse MELINA LOWE had a green halter. There was no independent verification of that advice.

2.5 Mr Alderslade emphasised that all those persons he represented had been complete cooperative with the RIU investigators. That was not disputed on behalf of the RIU.

2.6 Mr John Dunn and Mr Craig Smith have no convictions for breaches of the prohibited substance rules. Mr Robert Dunn has two (2) previous convictions for breaches of the prohibited substance rule. The first was in Australia in 1992. More recently in New Zealand in 2004. The conviction in Australia led to a six (6) month suspension of his trainer’s licence. The conviction in New Zealand in 2004 resulted in a $500 fine.

2.7 Mr Alderslade contended that this was a situation where three (3) parties had been charged in respect of one (1) offence and that Mr Robert Dunn accepted primary responsibility and that Mr John Dunn and Mr Craig Smith were following his instructions. With reference to the submission that three (3) parties were involved in the one offence Mr Alderslade drew attention to the High Court judgment in Commerce Commission v Wrightson NMA Limited [1994] 6 TCLR 279. That was a prosecution under the Commerce Act. The Court determined that the correct approach was to penalise a single cause of conduct and then divide the appropriate penalty between the defendant company and the individual employee who had been responsible for the unlawful conduct. That judgment is of limited assistance as penalties under the Commerce Act are at a level entirely different from those under the New Zealand Rules of Harness Racing.

2.8 Reference was made earlier to Mr Robert Dunn’s knowledge or otherwise of the relevant rule. Towards the end of the hearing Mr Robert Dunn sought leave to address the Committee. That was granted. He told the Committee that he thought the Rules of Harness Racing New Zealand in relation to prohibited substances were very involved and complicated. He sought to excuse his claimed lack of knowledge of the rules and the lack of knowledge of John Dunn and Craig Smith by reference to the claimed length and complexity of the rules. The rules are lengthy. The language is not complicated. The intention of the rules is plainly to preserve the integrity of harness racing. The Committee found Mr Robert Dunn’s explanation singularly unpersuasive.

2.9 In the Committee’ view a trainer of Mr Robert Dunn’s seniority and experience ought to be conversant with all the relevant rules in relation to prohibited substances. The more so, when as here, it has plainly been the practice of the stable over many years to administer Ketoprofen to all horses following their racing engagements. If it be Mr Robert Dunn’s position that he did not know the rule or did not know the precise terms of the rule that is not a mitigating circumstance and perhaps on one view might even been seen as an aggravating circumstance. It is the responsibility of all licence holders to acquaint themselves with the relevant rules the more so when, as here, the use of the particular prohibited substance Ketoprofen is plainly a regular occurrence. The Committee does not suggest by these comments that there are breaches of the rule rather that the licence holders who use prohibited substances in lawful circumstances need to know precisely what those circumstances are or to put it in more colloquial language when and where the prohibited substances can be administered.

2.10 In the Larsen decision issued on the same date as this decision the Committee recorded that it is not possible to definitely determine how Ketoprofen came to be in MELINA LOWE. What does need to be plainly recorded however is that Ketoprofen was unlawfully at Forbury Park on 23 June 2016, was in the very next stall to that where MELINA LOWE was boxed and that this Committee has determined that Mr Larsen and his stable had no part whatever in administering Ketoprofen to MELINA LOWE.

2.11 Mr Alderslade contended that the combined penalty for all three (3) persons of $8,000 proposed by the Informant was manifestly excessive and that the total monetary penalty should be $2,000 apportioned between the three (3) Defendants.

3. THE POSITION OF THE RIU

3.1 The leading authority in respect of professional disciplinary proceedings or disciplinary proceedings in relation to sporting codes is the Supreme Court judgment in Z v Complaints Assessment Committee [2009] 1 NZLR 1. Mr Lange in his submissions set out a number of quotations from the judgment of the Court. That which is most appropriate is from the judgment of McGrath J speaking for the majority being Blanchard, Tipping & McGrath JJ at paragraph 97. It is to this effect:

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.

3.2 Mr Lange went on to submit that Clause 5.1 of the Rules of Practice and Procedure for the conduct of Judicial Committees and Appeal Tribunals now adopts and expands upon the reasoning of the Supreme Court.

3.3 It is said that Mr Robert Dunn was aware of Rule 1004(5). Reference has been made above to the interview with Mr Robert Dunn where his answers in relation to his state of knowledge were somewhat equivocal. The Committee repeats its previously stated view that Mr Robert Dunn should have known of the existence of this rule and if, in truth, he did not that in no way detracts from his culpability. The Committee is of the view that Mr John Dunn and Mr Craig Smith should also have known of the rule. Given the very regular administration of Ketoprofen to horses in the Dunn stable all persons with responsibility in that stable, at whatever level, should have been fully acquainted with the relevant rules.

3.4 The RIU proposes monetary penalties. It is said that in the case for Mr Robert Dunn a fine of $3,000 is appropriate, in the case of Mr John Dunn a fine of $2,000 and in the case of Mr Smith a fine of $3,000. The RIU does not seek costs. It is said that this is because the breaches have been admitted.

4. DISCUSSION

4.1 Prohibited substances at a racecourse clearly involve an element of risk. Doubtless it is for that reason that such substances can only be brought to a racecourse with the express approval of a stipendiary steward or racecourse inspector. Note the term “Inspector” has now been replaced by the term “Investigator”. Licence holders who regularly administer prohibited substances – in circumstances which are lawful and with every intention of abiding the withholding period guidelines – must not put other licence holders at risk.

4.2 The horse MELINA LOWE somehow came to be racing with Ketoprofen in her system. While the Committee cannot determine how that came about it is of the view that this state of affairs did not come about as a result of any breach of the rules by the connections of that horse.

4.3 The Committee was referred to the decision in HRNZ v JJ Clementson. That decision was in 2007. Since that time the penalty for a breach of the relevant rule has been doubled. Further there were other allegations against the licence holder Clementson which may well have influenced the level of the fine that was imposed. The licence holder in that case was not of the same seniority and experience as Mr Robert Dunn.

4.4 The Committee considers that the breach of Rule 1004(5) is serious. It may have led to the prosecution of Mr Larsen. Whether or not that is so other licence holders at Forbury Park on 23 June 2016 were placed at risk.

4.5 The Committee accepts the submission advanced by both counsel that the party most culpable in these circumstances is Mr Robert Dunn. That will reflect in the penalty set out in the following paragraph.

5. DECISION

5.1 It is a question of fixing the appropriate monetary penalty in respect of each Defendant and in arriving at an appropriate apportionment as between the three (3) licence holders. Mr Robert Dunn is plainly the most senior and has the primary responsibility for the operation of the stable. Both Mr John Dunn and Mr Craig Smith should have been aware of the relevant rule.

5.2 Mr Robert Dunn will be fined the sum of $4,000. Mr John Dunn will be fined the sum of $2,000. Mr Craig Smith will be fined the sum of $2,000.

5.3 As noted earlier the RIU does not seek costs. That is a generous position for the Informant to have adopted.

5.4 The JCA has been put to significant expense and the Defendants must make a contribution towards the costs incurred. The figure fixed is not an indemnity figure but goes some way towards the costs which the JCA have incurred. The figure required to be paid to the JCA by each Respondent is $750.

5.5 This judgment should be read alongside that in RIU v Larsen a decision of this Committee also dated the 16 day of January 2017.

DATED this 16 day of January 2017

Murray McKechnie

Chairman

(signed pursuant to the Fifth Schedule to

the New Zealand Rules of Harness Racing)

BEFORE THE JUDICIAL COMMITTEE

AT DUNEDIN

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN

RACING INTEGRITY UNIT

Christopher John ALLISON

Racing Investigator

Informant

AND

Robert John DUNN

Public Trainer

Respondent

Together with

John Robert DUNN

Open Horseman

Respondent

Together with

Craig Thomas SMITH

Junior Horseman

Respondent

SUMMARY OF FACTS

1. I produce written authority from Mr. Mike Godber the General Manager of the Racing Integrity Unit to file 3 Informations for a breach of Rule 1004 (1A) in accordance with Rule 1108(2) of the Rules of Harness Racing New Zealand. The 3 respondents are all jointly charged.

2. The Respondents in this matter are;

a. Mr Robert John Dunn aged 62 who has been licensed with Harness Racing New Zealand since 1973 and he is currently the holder of a Public Trainers Licence.

b. Mr John Robert Dunn aged 33 who has been licensed with Harness Racing New Zealand since 2000 and he is currently the holder of an Open Horseman’s licence.

c. Mr. Craig Thomas Smith aged 25 who has been licensed with Harness Racing New Zealand since 2015 and he is currently the holder of a Junior Horseman’s licence.

3. Mr. Robert Dunn currently resides in Papakura and operates stables at Pukekohe near Auckland and at Woodend Beach north of Christchurch. Mr. Dunn is the registered trainer for both stables. Mr. Dunn is responsible for the conduct and compliance with the Rules of Harness Racing New Zealand for both stables.

4. Mr. Dunn has also agreed to at all times provide full co-operation with the persons responsible for monitoring the rules and ensure all staff under his control at both stables to provide the same co-operation. (letter dated 23/05/2016 signed 29/07/2016 to HRNZ)

5. The Woodend Beach stable is run by Mr. Dunn’s son John who is the stable foreman and in charge of the day to day running of the stable. Mr. John Dunn instructs the Woodend Beach staff of their duties and requirements.

6. Another staff member who works at the Woodend Beach stable is Mr. Craig Smith who is the holder of a Junior Horseman’s licence and has worked for the Dunn stables for about 4 years.

7. On the 23rd of June 2016 Melina Lowe trained by Mr. Kirk Larsen returned a positive test to the prohibited substance Ketoprofen after racing at the Forbury Park Trotting Club meeting.

8. As a result on the 1st of August 2016 Racing Integrity Unit Racing Investigators conducted follow up enquiries in relation to Mr. Larsen’s positive test at the stables of Mr. Dunn’s southern stable situated at Woodend Beach.

9. The follow up enquiries were conducted as Mr. Dunn’s horses were stabled next to Mr. Larsen’s horses and the cause of the positive test was unknown.

10. Mr John Dunn and Mr. Craig Smith were both interviewed by Racing Integrity Unit Investigators.

11. Mr. John Dunn advised he instructed Mr. Smith to inject the 6 horses who raced at Forbury Park on the 23rd of June after the completion of the races with 10mls of Kelaprofen which contains Ketoprofen. Mr. Dunn stated he believed the relevant rule to be an hour after the last race.

12. Mr. John Dunn kept diary records at his stable confirming the 6 horses had been administered Ketoprofen on the 23rd of June 2016 which Mr. Dunn refers to as “Key”.

13. Mr. John Dunn advised he has a policy to inject his horses post-race with 10mls of Ketoprofen to assist with their recovery. This is a normal routine the stable has employed for around 10 years.

14. The Ketoprofen product is sourced from the Rangiora Veterinary Clinic via the Dunn stable regular Veterinarian Dr. Sam Taylor.

15. Neither Mr Robert Dunn or Mr. John Dunn were present at Forbury on the 23rd of June 2016.

16. Mr Smith was left in charge of the racing team of around 6 horses which were stabled near Mosgiel during the winter racing at Forbury Park during May, June and early July 2016.

17. Mr Smith was in charge of the Dunn’s stable racing team at the Forbury Park Trotting Club meeting at Dunedin on the 23rd of June 2016 due to neither Mr. Robert Dunn nor Mr. John Dunn being present.

18. The racing team remained at Forbury Park following the races on the 23rd of June as the Dunn’s advised they did not have sufficient boxes at the Mosgiel stable. They were reluctant to put their horses in paddocks at night time due to them being caught in fences and injured on previous occasions.

19. Mr. Smith admitted the Ketoprofen and syringes were kept in a plastic tool box which was not secure and it was placed next to the gear bags in front of the boxes and the cross stalls. The Ketoprofen was in the bottom of the box, not visible and covered by other racing equipment.

20. Mr. Smith advised he did not inject the horses with the Ketoprofen until after the last race as per the rules.

21. On the 24th of August 2016 Mr. Smith was re-interviewed by Racing Integrity Unit staff.

22. Mr. Smith confirmed that he was originally working at the stable of Mr. Robert Dunn at West Melton and he was his boss. When Mr. Robert Dunn shifted to Auckland Mr. John Dunn had taken over the running of the stable and he is the person he receives all his instructions on a day to day basis.

23. Mr Smith advised that he had taken the bottle of Kelaprofen from the stable at Mosgiel and put it in the toolbox which is also used to store miscellaneous harness racing gear.

24. Mr. Smith stated the bottle of Kelaprofen was sent down south by Mr. John Dunn.

25. Mr John Dunn was re-interviewed on the 21st of September 2016 by Racing Investigators. Mr. Dunn acknowledged he had sent down the Kelaprofen for the purpose of administering the product to his racing team after the race meeting.

26. He further advised the stable had brought the Kelaprofen on course throughout the winter racing meetings at Forbury Park while their horses were stabled overnight there.

27. Both Mr. John Dunn and Mr. Craig Smith acknowledged they were not aware of Rule 1004 (5) which prohibits anyone having possession of a prohibited substance on course unless permission was obtained from Stipendiary Stewards or Racing Investigators.

28. Permission had not been obtained by any parties that evening.

29. In explanation Mr. John Dunn believed if his racing team was staying on course overnight he was permitted to have possession of it.

30. Mr Robert Dunn was interviewed by Racing Investigators on the 27th of September 2016.

31. Mr. Robert Dunn confirmed he oversees the operation of both stables with Mr. John Dunn operating the South Island stable.

32. The business is known as “RJD Harness Racing Limited “.

33. Mr Robert Dunn has previously tasked Mr. Smith to undertake the injecting of horses.

34. Mr. Smith was given authority to administer the drugs on the 23rd of June in the absence of Mr. John Dunn.

35. Neither Mr. John Dunn or Mr. Craig Smith have any previous breaches of the Prohibited Substance Rule.

36. Mr. Robert Dunn has 2 previous breaches of the Prohibited Substance Rule in Australia in 1992 where he presented 2 different horses DEFOE and MASTER MUSICIAN with prohibited substances and he received a 6 month suspension of his trainer’s licence. He also received a $500 fine for presenting a WAIT AND SEE to race with an elevated TCO2 level at the Westport Trotting Club meeting on the 28th of December 2004.

37. Mr Larsen has been charged with a breach of Rule 1004 (1A) for presenting Melina Lowe to race on the 23rd of June 2016 at Forbury Park with a prohibited substance namely Ketoprofen. This matter is currently before the Judicial Control Authority.
 

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