Non Raceday Inquiry RIU v S & E Clotworthy – Decision as to Costs dated 17 December 2019 – Chair, Mr M McKechnie

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decisiondate: 19/12/2019

hearing_title: Non Raceday Inquiry RIU v S & E Clotworthy - Decision as to Costs dated 17 December 2019 - Chair, Mr M McKechnie

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BEFORE A NON-RACEDAY JUDICIAL COMMITTEE

OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER -OF THE NEW ZEALAND THOROUGHBRED RACING RULES
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BETWEEN-THE RACING INTEGRITY UNIT (RIU)

INFORMANT

AND-SHAUN & EMMA CLOTWORTHY Licensed Class A Trainers

RESPONDENTS

Judicial Committee:-Mr Murray McKechnie Chairman & Mr Tangi Utikere

Present:--Mr Chris Lange, Counsel for RIU

Mr Oscar Westerlund, RIU Investigator

Mr Shaun Clotworthy & Mrs Emma Clotworthy

Mr Leo Molloy, Advocate for Shaun & Emma Clotworthy

Ms Karin Attwood, Registrar

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE AS TO COSTS

ELLERSLIE RACECOURSE

DATED THIS 17th DAY OF DECEMBER 2019

1.-INTRODUCTION

1.1-At the conclusion of the hearing at Ellerslie racecourse on 22 November 2019 the Committee ordered that Mr and Mrs Clotworthy pay the sum of $500 towards the costs of the JCA.

1.2-Mr Lange, counsel for the RIU, was not able to furnish information in relation to the costs of the B test. By paragraph 6.6 of the decision of 22 November Mr Lange was required to make available a copy of the invoice in relation to the B test and to make submissions as to costs sought by the RIU. Mr Molloy was given leave to respond.

2.-SUBMISSIONS FOR RIU

2.1-Mr Lange filed submissions dated 29 November. These advised that the B sample analysis and the cost of freight totalled $1,187.00.

2.2-Mr Lange’s submissions set out the detailed requests for information sought by Mr Molloy between 9 October and 21 November. The submissions explain that in excess of 40 emails were received requesting information. The nature of that information is set out in the RIU submissions. Further, there were repeated requests for a hair sample to be taken from the horse Zabdi. It is said that the requests were not relevant with reference to an admitted breach of the rules. For completeness, we set out the requests made of the RIU as recorded in Mr Lange’s submissions:

a.-ICRAV papers on Clenbuterol since 2010.

b.-Information from the New Zealand and Australian laboratories with regard to changing Clenbuterol thresholds:

c.-Timelines and industry protocols involved with regard to dissemination of information related to the changes.

d.-What agreement NZTR has signed up to with IFHA regarding banned, prohibited, or controlled pharmaceuticals.

e.-If NZTR was not a signatory to IFHA international screening thresholds the reason why not.

f.-If NZTR was not a signatory why the RIU was proceeding with the matter and where was the authority to pursue this matter.

g.-All data from Hong Kong Jockey Club (HKJC) accumulated on Clenbuterol and contamination from the drug.

h.-Any directive given by HKJC to veterinarians or trainers that pertain to the used of oral Clenbuterol.

i.-Any exchanges between the HKJC and Dr Andrew Grierson.

j.-The current lowest Clenbuterol threshold being used by all Australian laboratories.

k.-A copy of photographs taken by investigator Cruickshank previously disclosed as Mr Molloy had given his copy to the Clotworthy’s.

2.3-The costs incurred by the RIU to the end of October were $1,811.25. It is said in the submissions that further costs were incurred in responding to additional requests for information but no costs are sought in that regard. Further and significantly, the RIU does not seek costs for the hearing at Ellerslie racecourse.

3.-RESPONSE BY MR MOLLOY FOR MR & MRS CLOTWORTHY

3.1 -Mr Molloy filed a one page email on 3 December. This contains some highly emotive language. It is said that the Clotworthy’s should never have been charged. With reference to the requests for information it is said that the RIU did not co-operate. The emotive language spoken of above is illustrated by the following passages in Mr Molloy’s submission:

•-The panel should reflect “on that shameful degree of obfuscation and lack of RIU cooperation”.

•-With reference to laboratory quantitative testing it is said that this required considerable powerful persuasion and that too is an indictment of the RIU and their “appalling obstructive modus operandi.”

3.2-Mr Molloy submitted that the RIU did not need to engage legal counsel. Given what might accurately be described as “the bombardment” of requests for information from the RIU, the Committee considers that the engagement of counsel was entirely justified. Throughout Mr Lange in his written material and his oral submissions on 22 November has been measured and restrained.

3.3-The submissions conclude by requesting that the committee advise NZTR to act in accordance with what are said to be global best practices. As pointed out at the hearing at Ellerslie on 22 November and in the decision delivered that day, it is not the function of the JCA to advise NZTR as to the drug testing procedures it should follow. Industry representatives can, if they consider it appropriate, make submissions to NZTR on that subject.

3.4-A second email was received from Mr Molloy on the 4 December. With reference to the respected veterinarian Dr Andrew Grierson and what are said to be contradictions in the advice given to the RIU in September and subsequent in advice in November, the email from Mr Molloy says in that regard “we had to endure chicanery and evasion.”

3.5-Given the content of Mr Molloy’s emails of 3 and 4 December the Committee granted leave for the RIU to file submissions in reply.

4.-RIU SUBMISSIONS IN REPLY

4.1-By submissions dated 11 December Mr Lange has responded to the emails from Mr Molloy on behalf of Mr and Mrs Clotworthy dated 3 and 4 December.

4.2--In the RIU response Mr Lange points to the following:

a.-That the RIU does not have the ability to compel disclosure from a non-party.

b.-That Dr Grierson is an independent witness. The Committee knows of its own knowledge --that Dr Grierson is a highly respected veterinarian.

c.-The New Zealand Racing Laboratory Services are independent of the RIU.

d.-The quantitative analysis is not a requirement under the NZTR rules nor under the IFHA ---International screening limits. The submissions point out that it is not the function of a ---Judicial Committee to set screening limits. If screening limits in New Zealand are different --from those in other jurisdictions that is a matter which must be taken up by NZTR.

4.3-Mr Lange points to the Clotworthy’s guilty plea.

4.4-As noted in paragraph 2.3 above, the RIU does not seek costs in respect of the hearing at Ellerslie Racecourse on 22 November this year. The detailed submissions that have been filed in respect of this costs issue have doubtless involved the RIU in further expense. No costs are sought in that regard.

4.5-The Committee believes that the RIU were co-operative. Moreover, much of the information requested of them had little or no application to the enforcement of the rules in relation to prohibited substances in New Zealand.

4.6-In the circumstances outlined, the Committee considers that the RIU should be reimbursed the costs incurred to the end of October this year being the sum of $1,811.25. That in addition to the costs in relation to the B sample of $1,187.00. Those sums will be payable by Mr and Mrs Clotworthy.

DATED this 17th day of December 2019

Murray McKechnie

Chairman

Signed pursuant to Rule 1007(5)

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