Non Raceday Inquiry RIU v S & E Clotworthy – Decision dated 22 November 2019 – Chair, Mr M McKechnie
ID: JCA12806
Decision:
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
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
ELLERSLIE RACECOURSE
DATED THIS 22nd DAY OF NOVEMBER 2019
1.-INTRODUCTION
1.1-Shaun and Emma Clotworthy are licensed Class A trainers under the New Zealand Thoroughbred Racing Rules (NZTR). On 20 July 2019 at New Plymouth they presented the horse Zabdi in Race 2. The horse won the race and when subsequently tested, was found to have in its metabolism the prohibited substance Clenbuterol. This in breach of the NZTR Racing Rule 804(2). This made Mr and Mrs Clotworthy subject to the penalty provisions which might be imposed pursuant to Rule 804(7).
1.2-On 9 October this year there was a teleconference. Mr and Mrs Clotworthy, through their Advocate Mr Molloy, entered a plea of guilty and that plea was formally recorded at that time. The summary of facts is attached and should be read as part of this decision.
1.3-There was a further telephone conference on 12 November this year. Directions were given as to the filing of submissions. The RIU were directed to make further enquiries in relation to racing at New Plymouth post 24 November 2017. On 24 November 2017 a number of horses returned positive readings for the Class A drug methamphetamine (known as P). As a result of that the RIU sought a ruling from the Judicial Control Authority (JCA) in relation to the trainers Glynn Brick, Steven Ramsay and Julia Ritchie and Ralph Manning. The horses involved were disqualified but no charges were laid against the trainers. At the teleconference on 12 November Mr Lange was requested to make enquiries to establish what testing for prohibited drugs had occurred at New Plymouth post 24 November 2017. Those enquiries have established that only two horses have tested positive since 24 November 2017. One for methamphetamine and the other positive test was the subject horse here Zabdi with reference to the prohibited substance Clenbuterol.
2.-SUBMISSIONS FOR MR & MRS CLOTWORTHY
2.1-Mr Molloy has filed extensive submissions on behalf of Mr and Mrs Clotworthy. He points out that they come from a long established and respected family in the racing community. The Committee is aware of the family background and has particular recollection of the champion galloper Uncle Remus. Mr Molloy further points out that Mr and Mrs Clotworthy have never previously been in breach of the NZTR rules of racing.
2.2-Mr Molloy advised that he had spoken with a Mr Tim Roberts in Australia. Mr Roberts is the principle veterinarian for the champion Sydney trainer, Chris Waller. They had spoken about the level of the prohibited substance in Australia as compared with New Zealand. Mr Molloy advised that the prohibited level of Clenbuterol is Australia is 40 times higher than in New Zealand. Further reference will be made to that issue later in this decision.
2.3-Mr Molloy further advised that he had spoken at length with Mr Tony Pike, the leading Cambridge-based trainer who is the President of the New Zealand Trainers Association. This with reference to the prohibited level and also issues around quantitative readings and the approach to be taken by the RIU when determining if charges should be laid.
2.4-The committee explained that the JCA must adjudicate with reference to the rules in New Zealand as they stand. If it is thought that those rules require some modification or adjustment to bring them into line with overseas jurisdictions, that is a matter which must be taken up with NZTR and/or the RIU. Mr Lange, counsel for the RIU, indicated that there were some discussions underway but it was unclear how far those had progressed.
2.5-Mr Molloy’s principle submission was that the prohibited substance had entered the metabolism of Zabdi at the New Plymouth racecourse and not at the Clotworthy stables. It is appropriate to record here – more reference will be made later to this – that Mr Lange for the RIU acknowledged that there was a possibility that Clenbuterol had entered the metabolism of Zabdi while at New Plymouth.
2.6-Mr Molloy explained that the RIU had never previously had occasion to visit the Clotworthy stables. He acknowledged that the stables were not as tidy as they might have been.
2.7-With reference to New Plymouth, Mr Molloy pointed to the following:
a.-There are a number of sports that are played on the racecourse.
b.-There is a gymnasium in the main grandstand.
c.-The stables are not cleared out or cleaned as frequently as they should be. In this regard he pointed to the advice that Mr Clotworthy had to “muck out” the box before Zabdi could be placed there. It was Mr Molloy’s position that the standard of cleanliness at New Plymouth was not in line with NZTR guidelines. Further on this subject, reference was made to a letter written by Andrew Grierson, the Chief veterinarian of NZTR and dated as recently as 18 November of this year. This makes reference to a visit to the stables by the RIU investigator, Mr Simon Irving, on 13 August this year. No Clenbuterol was detected from the bedding at Taranaki tested on that day. Dr Grierson goes on to note that the time between the race, which was on 20 July 2019, and the time of the testing on 13 August 2019, was such that this could have been long enough for any Clenbuterol originally present to no longer be detectable.
3.-PENALTY SUBMISSION
3.1-Mr Molloy contended that no penalty should be imposed given that it was his submission that the prohibited substance more than likely entered the horse at New Plymouth than at the Clotworthy stables. He submitted that Mr and Mrs Clotworthy’s reputation had been seriously damaged and clients had been lost from the stable.
3.2-The Committee emphasises that there is no suggestion that Mr and Mrs Clotworthy acted deliberately in breach of the rules or that any of their conduct was directed towards somehow “cheating the system”. Inadvertent contamination of thoroughbreds can occur in a wide variety of circumstances and in many of those circumstances there is no fault on the part of the trainer or trainers.
3.3-Mr Molloy emphasised that NZTR had set the level for the prohibited substance at 40 times lower than in Australia and he contended that this was wrong. It followed from that submission that had the low-level reading returned on this occasion been recorded in Australia, no charge would have been laid. As earlier explained this Judicial Committee must act in terms of the rules in New Zealand. Further, Mr Molloy was critical of the RIU for not providing quantitative readings.
4.-MR CLOTWORTHY ADDRESSED THE COMMITTEE
4.1-Mr Clotworthy thanked Mr Molloy for his assistance. He spoke of having lost horses from the stable and being at a race meeting where he had heard people speak ill of him by reference to his horses using drugs. Interestingly Mr Clotworthy explained that at the next New Plymouth meeting where he had a horse or horses entered, the boxes had been cleaned and he showed to the Committee a video taken on that occasion.
4.2-Mr Clotworthy explained that he had a 90 per cent interest in the horse Zabdi and that in consequence he had lost significant stake money. He contended that the situation which he and his wife, Emma, find themselves in should be treated the same way as were the trainers Brick, Ramsay and Ritchie and Manning. He emphasised the stress and upset which this matter had caused.
4.3--In addition to the position of the trainers Brick, Ramsay and Ritchie and Manning, both Mr Molloy and Mr Clotworthy contended that the Committee should be guided by the decision in the case RIU v Rae.
5.-SUBMISSIONS FOR THE RIU
5.1-Mr Lange began by making reference to the contemporary judgment of a JCA Tribunal’s decision in RIU v Lawson. That is dated May of this year. That decision emphasised the importance of a disciplinary approach to breaches of the rules rather than a concentration upon punishment. Mr Lange’s submissions also made reference to the landmark judgment of the Supreme Court in Z v Complaints Assessment Committee [2009] 1 NZLR and the submissions quoted extensively from the judgment of the Chief Justice. This Committee accepts that the approach as set out in RIU v Lawson is appropriate and in accordance with Z v Complaints Assessment Committee.
5.2-Mr Lange readily acknowledged that there was no suggestion of deliberate wrongdoing by Mr and Mrs Clotworthy and further, that they had no previous offending.
5.3-Mr Lange drew attention to the high standard required of trainers and in support of that submission referred to his written material which quoted extensively from the Appeals Tribunal in Justice v RIU. That is a well-known decision from harness racing which went from the Appeals Tribunal to the High Court. The decisions of the Non-Raceday Judicial Committee and the Appeals Tribunal were upheld by the High Court.
5.4-With reference to the facts of this particular case, Mr Lange acknowledged that there were two possible explanations. First, that the prohibited substance had entered Zabdi while on the racecourse and secondly, that the prohibited substance had entered the horse when at the Clotworthy stables. With reference to the first possibility, Mr Lange contended that it was unlikely that persons from the gymnasium would go to the stabling area and he drew attention to a photograph which had been attached to his submissions. Further, Mr Lange pointed to the fact that there were two containers found in the Clotworthy stable which had contained Clenbuterol. These were said to have expired at 2014. After some questions from the Committee it seems clear that notwithstanding the expiry date there may still have been some active ingredients. Mr Lange pointed to the photograph taken in the stable and of the container holding the “Airway TMPS” material and that this was at the front of the shelf.
5.5-Mr Lange submitted that it was unsatisfactory that Mr Clotworthy was unaware that either of the containers shown in the photograph contained Clenbuterol. He submitted that trainers should make it their business to know the nature of all of the medicinal material which they have in their stable. There was some criticism from Mr Lange of there being no evidence of what, if anything, Mr and Mrs Clotworthy had done to tidy up the stable since the events which have led to this hearing. It is appropriate to record that in response to that Mr Molloy advised that steps had been taken to tidy up the stable and that there was a locked cabinet where substances that might put animals at risk were to be contained.
6.-CONSIDERATION OF THE EVIDENCE
6.1-It is the Committee’s view that there are, as has been explained above, two real possibilities as to how the prohibited substance entered the horse Zabdi. It is difficult to assess which of those two possibilities is the more probable. It was responsible in the Committee’s view, for the RIU to acknowledge that entry of Clenbuterol at New Plymouth was a live possibility. The Committee has not overlooked the submissions from Mr Lange recorded above as to what might be described as the unlikelihood of that occurring. Nevertheless the Committee takes the view that contamination at New Plymouth racecourse may have occurred. The standard of cleanliness at that racecourse is clearly a matter of concern. The measurement of quantification of the risk of contamination at the New Plymouth Racecourse is not easy to determine or assess.
6.2-In the Committee’s view if the contamination at the Racecourse possibility were not present or could be completely eliminated then a fine in the range of $4,000.00 to $6,000.00 would be appropriate. This is in line with contemporary decisions in RIU v McGowan which involved a positive Clenbuterol test and the earlier decision in RIU v Noble 2010 also a Clenbuterol positive. Having regard to the possibility of the prohibited substance entering the horse Zabdi at the racecourse, the Committee takes the view that the level of fine spoken of above in the range of $4,000.00 to $6,000.00 should be significantly reduced and the figure that has been arrived at when weighing up all of the competing considerations is $2,500.00.
6.3-There was a second testing of the substance taken from Zabdi. This is known as “the B test”. Mr Lange was not able to indicate the exact cost of that. The RIU seeks to be reimbursed in respect of that. The Committee directs that Mr Lange for the RIU will make available a copy of the invoice from the laboratory which undertook the B test. The Committee will then consider whether that should be required to be paid by Mr and Mrs Clotworthy or whether perhaps the cost should be apportioned between the parties, given what has been said above in relation to the two possibilities explaining the prohibited substance being with the horse Zabdi.
6.4-There will also be costs sought by the RIU in respect of the hearing. Mr Lange will submit with the invoice for the B test a brief, no longer than one page, a submission as to the costs which the RIU seek.
6.5-There will be costs payable to the JCA. It is not the normal practice to require those costs to be at an indemnity level – that is to say the total cost incurred by the JCA is not ordinarily required to be paid. The JCA has incurred significant expense in assembling today – the Chairman is domiciled in Rotorua and Mr Utikere in Palmerston North. The costs figure towards the JCA’s costs will be fixed at $500.00.
6.6-Mr Lange will make the copy invoice and the one page submission as to the costs sought by the RIU available within five working days and serve a copy upon Mr Molloy. If Mr Molloy wishes, he may make a response to that within a further five working days.
7.-DISQUALIFICATION
7.1-Disqualification automatically follows a plea of guilty for a breach of rule 804(2). This matter was canvassed in the Minute of the Committee dated 9 October 2019. There will now be a formal Order disqualifying Zabdi from Race 2 at New Plymouth of 20 July 2019 and in consequence the horses which finished second, third, fourth, fifth and sixth will be moved one place further forward. The disqualification is made pursuant to Rule 804(1).
7.2-The Committee thanks Mr Molloy and Mr Lange for their assistance.
DATED this 22nd day of November 2019
Murray McKechnie
Chairman
Signed pursuant to Rule 1007(5)
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BEFORE THE JUDICIAL COMMITTEE
AT AUCKLAND
IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
BETWEEN
RACING INTEGRITY UNIT
Oscar WESTERLUND
Investigator
Informant
AND
Shaun & Emma CLOTWORTHY
Licensed Class ‘A’ Trainers
Respondents
SUMMARY OF FACTS
The training partnership of Shaun & Emma CLOTWORTHY are the holders of a Class ‘A’ Trainers Licence issued by New Zealand Thoroughbred Racing (NZTR).
On Saturday the 20th July 2019, the horse “Zabdi” was correctly entered and presented to race in Race 7 – Sinclair Electrical & Refrigeration SC maiden 1800 1400 metres - at the Taranaki Racing Inc. meeting at New Plymouth Raceway.
“Zabdi” is a 5 year old bay gelding (by Zed - Jumar) and is trained by the Respondents Shaun & Emma Clotworthy.
“Zabdi” finished first of the thirteen horse field and won a stake of $14,060.
“Zabdi” underwent a random Post Race urine swab. The training partnership does not contest the swabbing process.
All swab samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the rules of New Zealand Rules of Thorougbred Racing.
On the 6th August 2019, a Certificate of Analysis signed by Mr Rob Howitt, the Official Racing Analyst reported in writing that the samples from “Zabdi” had tested positive to the prohibited substance Clenbuterol.
Clenbuterol is used in the equine treatment of airway disease and it is capable of acting upon the respiratory system.
This is a Prohibited Substance within the meaning of the Rules and its presence in a race day sample is, prima facie, a breach of the Rules.
Shaun and Emma were spoken to on Thursday the 8th August 2019 at their stables in Waiau Pa. They stated they did not know what Clebuterol was and had never used it.
In the feed room four exhibits were located and sent for testing. These included samples of “Ventipulmin Oral Bronchodilator” and “Airway TMPS”.
On the 2nd September 2019 the Official Racing Analyst reported in writing that both the “Ventipulmin Oral Bronchodilator” and “Airways TMPS” contained Clenbuterol.
During collection of the sample of “Ventipulmin Oral Brochodilator” a small spillage (approx. half a teaspoon) occurred on the bench and floor. Nothing spilt went into any feed. Emma Clotworthy was immediately notified.
About 5 hours after Investigators had left the property Shaun Clotworthy contacted them concerned about the spillage. Investigators returned and it was evident that the Clotworthy’s had not cleaned the spillage. In fact it was evident that people and animals had walked through it.
As a gesture of ‘good faith’ the RIU undertook drug testing of all horses, identified by Shaun Clotworthy, scheduled to race within the 18 day withholding period. Sixteen horses were tested and one that had not raced since February 2019 tested positive to Clenbuterol.
On the 8th August 2019 four exhibit samples were also taken from Box 5 at the New Plymouth Raceway where “Zabdi” was housed prior to racing. The samples upon analysis did not detect any Clenbuterol.
Shaun and Emma advised that they would like to have the “B” Sample forwarded to Australia for analysis. The “B” Sample was subsequently forwarded to the Racing Analytical Services Ltd (RASL) in Melbourne.
A written report was issued by RASL on the 11th September 2019 which confirmed that Clenbuterol was present in the “B” Sample provided by “Zabdi”. Shaun and Emma CLOTWORTHY were advised of the result.
Shaun CLOTWORTHY has been involved in the Thoroughbred Racing Industry all his adult life.
He has been in a training partnership with his wife, Emma, for two years.
They hold a Class ‘A’ Trainers License.
Shaun and Emma CLOTWORTHY have not previously had a drug positive.
An order is sought for the horse “Zabdi” to be disqualified from the race and any stakes money to be repaid.
O. WESTERLUND
Racing Investigator
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 19/12/2019
Publish Date: 19/12/2019
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 19/12/2019
hearing_title: Non Raceday Inquiry RIU v S & E Clotworthy - Decision dated 22 November 2019 - Chair, Mr M McKechnie
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facts:
appealdecision: NO LINKED APPEAL DECISION
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Decision:
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
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
ELLERSLIE RACECOURSE
DATED THIS 22nd DAY OF NOVEMBER 2019
1.-INTRODUCTION
1.1-Shaun and Emma Clotworthy are licensed Class A trainers under the New Zealand Thoroughbred Racing Rules (NZTR). On 20 July 2019 at New Plymouth they presented the horse Zabdi in Race 2. The horse won the race and when subsequently tested, was found to have in its metabolism the prohibited substance Clenbuterol. This in breach of the NZTR Racing Rule 804(2). This made Mr and Mrs Clotworthy subject to the penalty provisions which might be imposed pursuant to Rule 804(7).
1.2-On 9 October this year there was a teleconference. Mr and Mrs Clotworthy, through their Advocate Mr Molloy, entered a plea of guilty and that plea was formally recorded at that time. The summary of facts is attached and should be read as part of this decision.
1.3-There was a further telephone conference on 12 November this year. Directions were given as to the filing of submissions. The RIU were directed to make further enquiries in relation to racing at New Plymouth post 24 November 2017. On 24 November 2017 a number of horses returned positive readings for the Class A drug methamphetamine (known as P). As a result of that the RIU sought a ruling from the Judicial Control Authority (JCA) in relation to the trainers Glynn Brick, Steven Ramsay and Julia Ritchie and Ralph Manning. The horses involved were disqualified but no charges were laid against the trainers. At the teleconference on 12 November Mr Lange was requested to make enquiries to establish what testing for prohibited drugs had occurred at New Plymouth post 24 November 2017. Those enquiries have established that only two horses have tested positive since 24 November 2017. One for methamphetamine and the other positive test was the subject horse here Zabdi with reference to the prohibited substance Clenbuterol.
2.-SUBMISSIONS FOR MR & MRS CLOTWORTHY
2.1-Mr Molloy has filed extensive submissions on behalf of Mr and Mrs Clotworthy. He points out that they come from a long established and respected family in the racing community. The Committee is aware of the family background and has particular recollection of the champion galloper Uncle Remus. Mr Molloy further points out that Mr and Mrs Clotworthy have never previously been in breach of the NZTR rules of racing.
2.2-Mr Molloy advised that he had spoken with a Mr Tim Roberts in Australia. Mr Roberts is the principle veterinarian for the champion Sydney trainer, Chris Waller. They had spoken about the level of the prohibited substance in Australia as compared with New Zealand. Mr Molloy advised that the prohibited level of Clenbuterol is Australia is 40 times higher than in New Zealand. Further reference will be made to that issue later in this decision.
2.3-Mr Molloy further advised that he had spoken at length with Mr Tony Pike, the leading Cambridge-based trainer who is the President of the New Zealand Trainers Association. This with reference to the prohibited level and also issues around quantitative readings and the approach to be taken by the RIU when determining if charges should be laid.
2.4-The committee explained that the JCA must adjudicate with reference to the rules in New Zealand as they stand. If it is thought that those rules require some modification or adjustment to bring them into line with overseas jurisdictions, that is a matter which must be taken up with NZTR and/or the RIU. Mr Lange, counsel for the RIU, indicated that there were some discussions underway but it was unclear how far those had progressed.
2.5-Mr Molloy’s principle submission was that the prohibited substance had entered the metabolism of Zabdi at the New Plymouth racecourse and not at the Clotworthy stables. It is appropriate to record here – more reference will be made later to this – that Mr Lange for the RIU acknowledged that there was a possibility that Clenbuterol had entered the metabolism of Zabdi while at New Plymouth.
2.6-Mr Molloy explained that the RIU had never previously had occasion to visit the Clotworthy stables. He acknowledged that the stables were not as tidy as they might have been.
2.7-With reference to New Plymouth, Mr Molloy pointed to the following:
a.-There are a number of sports that are played on the racecourse.
b.-There is a gymnasium in the main grandstand.
c.-The stables are not cleared out or cleaned as frequently as they should be. In this regard he pointed to the advice that Mr Clotworthy had to “muck out” the box before Zabdi could be placed there. It was Mr Molloy’s position that the standard of cleanliness at New Plymouth was not in line with NZTR guidelines. Further on this subject, reference was made to a letter written by Andrew Grierson, the Chief veterinarian of NZTR and dated as recently as 18 November of this year. This makes reference to a visit to the stables by the RIU investigator, Mr Simon Irving, on 13 August this year. No Clenbuterol was detected from the bedding at Taranaki tested on that day. Dr Grierson goes on to note that the time between the race, which was on 20 July 2019, and the time of the testing on 13 August 2019, was such that this could have been long enough for any Clenbuterol originally present to no longer be detectable.
3.-PENALTY SUBMISSION
3.1-Mr Molloy contended that no penalty should be imposed given that it was his submission that the prohibited substance more than likely entered the horse at New Plymouth than at the Clotworthy stables. He submitted that Mr and Mrs Clotworthy’s reputation had been seriously damaged and clients had been lost from the stable.
3.2-The Committee emphasises that there is no suggestion that Mr and Mrs Clotworthy acted deliberately in breach of the rules or that any of their conduct was directed towards somehow “cheating the system”. Inadvertent contamination of thoroughbreds can occur in a wide variety of circumstances and in many of those circumstances there is no fault on the part of the trainer or trainers.
3.3-Mr Molloy emphasised that NZTR had set the level for the prohibited substance at 40 times lower than in Australia and he contended that this was wrong. It followed from that submission that had the low-level reading returned on this occasion been recorded in Australia, no charge would have been laid. As earlier explained this Judicial Committee must act in terms of the rules in New Zealand. Further, Mr Molloy was critical of the RIU for not providing quantitative readings.
4.-MR CLOTWORTHY ADDRESSED THE COMMITTEE
4.1-Mr Clotworthy thanked Mr Molloy for his assistance. He spoke of having lost horses from the stable and being at a race meeting where he had heard people speak ill of him by reference to his horses using drugs. Interestingly Mr Clotworthy explained that at the next New Plymouth meeting where he had a horse or horses entered, the boxes had been cleaned and he showed to the Committee a video taken on that occasion.
4.2-Mr Clotworthy explained that he had a 90 per cent interest in the horse Zabdi and that in consequence he had lost significant stake money. He contended that the situation which he and his wife, Emma, find themselves in should be treated the same way as were the trainers Brick, Ramsay and Ritchie and Manning. He emphasised the stress and upset which this matter had caused.
4.3--In addition to the position of the trainers Brick, Ramsay and Ritchie and Manning, both Mr Molloy and Mr Clotworthy contended that the Committee should be guided by the decision in the case RIU v Rae.
5.-SUBMISSIONS FOR THE RIU
5.1-Mr Lange began by making reference to the contemporary judgment of a JCA Tribunal’s decision in RIU v Lawson. That is dated May of this year. That decision emphasised the importance of a disciplinary approach to breaches of the rules rather than a concentration upon punishment. Mr Lange’s submissions also made reference to the landmark judgment of the Supreme Court in Z v Complaints Assessment Committee [2009] 1 NZLR and the submissions quoted extensively from the judgment of the Chief Justice. This Committee accepts that the approach as set out in RIU v Lawson is appropriate and in accordance with Z v Complaints Assessment Committee.
5.2-Mr Lange readily acknowledged that there was no suggestion of deliberate wrongdoing by Mr and Mrs Clotworthy and further, that they had no previous offending.
5.3-Mr Lange drew attention to the high standard required of trainers and in support of that submission referred to his written material which quoted extensively from the Appeals Tribunal in Justice v RIU. That is a well-known decision from harness racing which went from the Appeals Tribunal to the High Court. The decisions of the Non-Raceday Judicial Committee and the Appeals Tribunal were upheld by the High Court.
5.4-With reference to the facts of this particular case, Mr Lange acknowledged that there were two possible explanations. First, that the prohibited substance had entered Zabdi while on the racecourse and secondly, that the prohibited substance had entered the horse when at the Clotworthy stables. With reference to the first possibility, Mr Lange contended that it was unlikely that persons from the gymnasium would go to the stabling area and he drew attention to a photograph which had been attached to his submissions. Further, Mr Lange pointed to the fact that there were two containers found in the Clotworthy stable which had contained Clenbuterol. These were said to have expired at 2014. After some questions from the Committee it seems clear that notwithstanding the expiry date there may still have been some active ingredients. Mr Lange pointed to the photograph taken in the stable and of the container holding the “Airway TMPS” material and that this was at the front of the shelf.
5.5-Mr Lange submitted that it was unsatisfactory that Mr Clotworthy was unaware that either of the containers shown in the photograph contained Clenbuterol. He submitted that trainers should make it their business to know the nature of all of the medicinal material which they have in their stable. There was some criticism from Mr Lange of there being no evidence of what, if anything, Mr and Mrs Clotworthy had done to tidy up the stable since the events which have led to this hearing. It is appropriate to record that in response to that Mr Molloy advised that steps had been taken to tidy up the stable and that there was a locked cabinet where substances that might put animals at risk were to be contained.
6.-CONSIDERATION OF THE EVIDENCE
6.1-It is the Committee’s view that there are, as has been explained above, two real possibilities as to how the prohibited substance entered the horse Zabdi. It is difficult to assess which of those two possibilities is the more probable. It was responsible in the Committee’s view, for the RIU to acknowledge that entry of Clenbuterol at New Plymouth was a live possibility. The Committee has not overlooked the submissions from Mr Lange recorded above as to what might be described as the unlikelihood of that occurring. Nevertheless the Committee takes the view that contamination at New Plymouth racecourse may have occurred. The standard of cleanliness at that racecourse is clearly a matter of concern. The measurement of quantification of the risk of contamination at the New Plymouth Racecourse is not easy to determine or assess.
6.2-In the Committee’s view if the contamination at the Racecourse possibility were not present or could be completely eliminated then a fine in the range of $4,000.00 to $6,000.00 would be appropriate. This is in line with contemporary decisions in RIU v McGowan which involved a positive Clenbuterol test and the earlier decision in RIU v Noble 2010 also a Clenbuterol positive. Having regard to the possibility of the prohibited substance entering the horse Zabdi at the racecourse, the Committee takes the view that the level of fine spoken of above in the range of $4,000.00 to $6,000.00 should be significantly reduced and the figure that has been arrived at when weighing up all of the competing considerations is $2,500.00.
6.3-There was a second testing of the substance taken from Zabdi. This is known as “the B test”. Mr Lange was not able to indicate the exact cost of that. The RIU seeks to be reimbursed in respect of that. The Committee directs that Mr Lange for the RIU will make available a copy of the invoice from the laboratory which undertook the B test. The Committee will then consider whether that should be required to be paid by Mr and Mrs Clotworthy or whether perhaps the cost should be apportioned between the parties, given what has been said above in relation to the two possibilities explaining the prohibited substance being with the horse Zabdi.
6.4-There will also be costs sought by the RIU in respect of the hearing. Mr Lange will submit with the invoice for the B test a brief, no longer than one page, a submission as to the costs which the RIU seek.
6.5-There will be costs payable to the JCA. It is not the normal practice to require those costs to be at an indemnity level – that is to say the total cost incurred by the JCA is not ordinarily required to be paid. The JCA has incurred significant expense in assembling today – the Chairman is domiciled in Rotorua and Mr Utikere in Palmerston North. The costs figure towards the JCA’s costs will be fixed at $500.00.
6.6-Mr Lange will make the copy invoice and the one page submission as to the costs sought by the RIU available within five working days and serve a copy upon Mr Molloy. If Mr Molloy wishes, he may make a response to that within a further five working days.
7.-DISQUALIFICATION
7.1-Disqualification automatically follows a plea of guilty for a breach of rule 804(2). This matter was canvassed in the Minute of the Committee dated 9 October 2019. There will now be a formal Order disqualifying Zabdi from Race 2 at New Plymouth of 20 July 2019 and in consequence the horses which finished second, third, fourth, fifth and sixth will be moved one place further forward. The disqualification is made pursuant to Rule 804(1).
7.2-The Committee thanks Mr Molloy and Mr Lange for their assistance.
DATED this 22nd day of November 2019
Murray McKechnie
Chairman
Signed pursuant to Rule 1007(5)
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BEFORE THE JUDICIAL COMMITTEE
AT AUCKLAND
IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
BETWEEN
RACING INTEGRITY UNIT
Oscar WESTERLUND
Investigator
Informant
AND
Shaun & Emma CLOTWORTHY
Licensed Class ‘A’ Trainers
Respondents
SUMMARY OF FACTS
The training partnership of Shaun & Emma CLOTWORTHY are the holders of a Class ‘A’ Trainers Licence issued by New Zealand Thoroughbred Racing (NZTR).
On Saturday the 20th July 2019, the horse “Zabdi” was correctly entered and presented to race in Race 7 – Sinclair Electrical & Refrigeration SC maiden 1800 1400 metres - at the Taranaki Racing Inc. meeting at New Plymouth Raceway.
“Zabdi” is a 5 year old bay gelding (by Zed - Jumar) and is trained by the Respondents Shaun & Emma Clotworthy.
“Zabdi” finished first of the thirteen horse field and won a stake of $14,060.
“Zabdi” underwent a random Post Race urine swab. The training partnership does not contest the swabbing process.
All swab samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the rules of New Zealand Rules of Thorougbred Racing.
On the 6th August 2019, a Certificate of Analysis signed by Mr Rob Howitt, the Official Racing Analyst reported in writing that the samples from “Zabdi” had tested positive to the prohibited substance Clenbuterol.
Clenbuterol is used in the equine treatment of airway disease and it is capable of acting upon the respiratory system.
This is a Prohibited Substance within the meaning of the Rules and its presence in a race day sample is, prima facie, a breach of the Rules.
Shaun and Emma were spoken to on Thursday the 8th August 2019 at their stables in Waiau Pa. They stated they did not know what Clebuterol was and had never used it.
In the feed room four exhibits were located and sent for testing. These included samples of “Ventipulmin Oral Bronchodilator” and “Airway TMPS”.
On the 2nd September 2019 the Official Racing Analyst reported in writing that both the “Ventipulmin Oral Bronchodilator” and “Airways TMPS” contained Clenbuterol.
During collection of the sample of “Ventipulmin Oral Brochodilator” a small spillage (approx. half a teaspoon) occurred on the bench and floor. Nothing spilt went into any feed. Emma Clotworthy was immediately notified.
About 5 hours after Investigators had left the property Shaun Clotworthy contacted them concerned about the spillage. Investigators returned and it was evident that the Clotworthy’s had not cleaned the spillage. In fact it was evident that people and animals had walked through it.
As a gesture of ‘good faith’ the RIU undertook drug testing of all horses, identified by Shaun Clotworthy, scheduled to race within the 18 day withholding period. Sixteen horses were tested and one that had not raced since February 2019 tested positive to Clenbuterol.
On the 8th August 2019 four exhibit samples were also taken from Box 5 at the New Plymouth Raceway where “Zabdi” was housed prior to racing. The samples upon analysis did not detect any Clenbuterol.
Shaun and Emma advised that they would like to have the “B” Sample forwarded to Australia for analysis. The “B” Sample was subsequently forwarded to the Racing Analytical Services Ltd (RASL) in Melbourne.
A written report was issued by RASL on the 11th September 2019 which confirmed that Clenbuterol was present in the “B” Sample provided by “Zabdi”. Shaun and Emma CLOTWORTHY were advised of the result.
Shaun CLOTWORTHY has been involved in the Thoroughbred Racing Industry all his adult life.
He has been in a training partnership with his wife, Emma, for two years.
They hold a Class ‘A’ Trainers License.
Shaun and Emma CLOTWORTHY have not previously had a drug positive.
An order is sought for the horse “Zabdi” to be disqualified from the race and any stakes money to be repaid.
O. WESTERLUND
Racing Investigator
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