Non Raceday Inquiry – RIU v TW Mitchell 23 February 2012 – Decision dated 20 March 2012
ID: JCA16770
Decision:
Rules:
1004(1A) & 1004(1), 1004(2), 1004(7) and 1004(8)
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
HELD AT AUCKLAND
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN Mr THOMAS RODNEY CARMICHAEL – Chief Racing Investigator (on behalf of Harness Racing New Zealand)
Informant
AND Mr Todd William Mitchell – Public Trainer and Open Horseman
Defendant
Information No’s: 69183, 67323 & 67328
Venue: Ellerslie Racecourse, Auckland
Judicial Committee: BJ Scott, (Chairman) - AJ Dooley, (Committee Member)
Appearing: Mr CJ Lange – Counsel for the Informant, Mr TR Carmichael – Chief Racing Investigator, Mr C George – Chief Stipendiary Steward, Dr A Grierson – Chief Veterinarian for HRNZ and NZTR, Mr TW Mitchell – in person, Ms MJ Thomas – Counsel for Mr Mitchell (by teleconference), Dr HMG Williamson – Retired Veterinary Surgeon, Miss S Baikie – Stable Employee of Mr Mitchell, Miss V Crawley – In support of Mr Mitchell, Mr B Lichter – Journalist, Mr M Williamson – Registrar
Plea: Admitted
Date of Hearing: 23rd February 2012
Date of Decision: 20th March 2012
DECISION OF JUDICIAL COMMITTEE
1.1 Mr Mitchell faced three charges pursuant to Rules 1004(A), 1004(1) and 1004(2) and that pursuant to those Rules he is liable to a penalty or penalties that may be imposed pursuant to Rule 1004(7) and that the horses concerned shall be liable to the penalties prescribed by Rule 1004(8).
The charges were as follows:
(a) On the 28th day of April 2011 Todd William Mitchell was the Trainer and the person for the time being in charge of the horse COVERT ACTION which was presented to race in race 4, the Supporters Pack May 19th Mobile Pace, at a race meeting conducted by the Cambridge-Te Awamutu Harness Racing Club at Cambridge Raceway, when a pre-race blood sample taken from COVERT ACTION was found upon analysis to have a TC02 level of 36.4 mmol/L, in breach of the provisions of Rules 1004(1A), 1004(1) and 1004(2).
(b) On the 17th day of June 2011 Todd William Mitchell was the trainer and the person for the time being in charge of the horse SKIP BO which was presented to race in race 1, the Grand Hotel Mobile Pace, at a race meeting conducted by the Auckland Trotting Club at Alexandra Park, when a pre-race blood sample taken from SKIP BO was found upon analysis to have a TC02 level of 36.5 mmol/L, in breach of the provisions of Rule 1004(1A), 1004(1) and 1004(2) of the Rules of Harness Racing.
(c) On the 1st day of July 2011 Todd William Mitchell was the person for the time being in charge of the horse ANVILS DELIGHT which was presented to race in race 8, the Placemakers Thames and Whitianga Mobile Pace, at a race meeting conducted by the Thames Harness Racing Club at Alexandra Park, when a pre-race blood sample taken from ANVILS DELIGHT was found upon analysis to have a TC02 level of 36.4 mmol/L, in breach of the provisions of Rule 1004(1A) and 1004(3) of the Rules of Harness Racing.
1.2 The Operations Manager of the Racing Integrity Unit by letters to Mr Carmichael had given approval for the charges to be lodged against Mr Mitchell.
1.3 Information No. 67326 had been issued against Mr Phillip Benjiman Burrows as the official Trainer of the horse ANVILS DELIGHT. At the outset of this Hearing Mr Lange sought leave to withdraw that Information on the basis that Mr Burrows was not involved prior to or at the time that ANVILS DELIGHT raced on the 1st of July 2011 and that Mr Mitchell had accepted responsibility.
The Information was withdrawn by leave.
1.4 Rules 1004(1), (1A), (2) and (3), Rule 1005, Rule 1004(C), Rule 1008 and Rule 1008(A) provide as follows:
1004 (1) A horse shall be presented for a race free from prohibited substances.
(1A) A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 mill moles per litre in plasma.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with Sub-Rule (1) the Trainer of the horse commits a breach of these Rules.
(3) Where a person is left in charge of a horse, and the horse is taken, or is to be taken to a racecourse for the purpose of engaging in a race, otherwise than in accordance with Sub-Rule (1), the Trainer of the horse and the person left in charge both commit a breach of these Rules.
Rule 1005 – Definition of Prohibited Substance
PROHIBITED SUBSTANCE means:
(a) any substance capable of affecting the speed, stamina, courage or conduct of a horse by its actions upon the central or peripheral nervous system, or the cardio-vascular, respiratory, alimentary-digestive, musculoskeletal or urogenital systems, and
(b) any substance set out in the Prohibited Substance Regulations; and
(c) metabolites, artefacts and isomers of the prohibited substances prescribed by paragraphs (a) and/or (b) hereof.
Rule 1004(C)
The Executive may make regulations (the “Prohibited Substance Regulations”) which lists substances, or categories of substances, as prohibited substances and may include in such list, levels for substances below which are excepted as prohibited substances.
Prohibited Substance Regulations
These regulations made by the Executive pursuant to the Rules of Harness Racing shall be referred to as the Prohibited Substance Regulations.
The following substances shall be prohibited substances:
(a) ….
(b) substances falling with the following categories of substances:
Alkalinising agents
The following substances when present at or below the levels set are excepted as prohibited substances:
(a) Alkalising agents, when evidenced by total carbon dioxide (TC02) present at a concentration of 35.0 millimoles per litre.
Rule 1008
In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:
(a) it shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule: and
(b) any breach of a Rule shall be considered as an offence of strict liability.
Rule 1008A
Where in any proceeding, any matter is required to be proved by an informant or defendant, the standard of proof shall be the balance of probabilities.
The effect of these Rules is clear. Where a horse is presented to race with a TC02 above 35mmol/L the horse is deemed to be presented in breach of the Prohibited Substance Rules (Rule 1004). It is not necessary for the informant to prove what has caused the elevated level or the person responsible.
The Rule imposes a strict obligation on the trainer, or person in charge, to ensure the horse is presented free of prohibited substance.
1.5 Mr Lange presented a statement of facts relating to each charge and those facts were as follows:
(a)a.1 COVERT ACTION started in Race 4 the Supporters Pack May 19th Mobile Pace at the Cambridge-Te Awamutu Harness Racing Club Meeting at Cambridge Raceway on the 28th of April 2011.
a.2 The horse finished third.
a.3 COVERT ACTION was one of five horses tested in the race and these were horses that had not previously been tested for TC02 levels.
a.4 The samples were correctly packaged and forwarded to the Racing Laboratory for analysis.
a.5 On the 4th of May 2011 the Racing Laboratory reported to Harness Racing New Zealand that the sample taken from COVERT ACTION had returned a TC02 result of 36.4 mmol/L. The Certificate of Analysis was dated the 2nd of May 2011.
a.6 On the 5th of May 2011 a blood sample was taken from COVERT ACTION at Mr Mitchell’s stables. That sample was sent to the Racing Laboratory for analysis and returned a TC02 level of 30.8 mmol/L.
a.7 On the 12th of May 2011 COVERT ACTION was presented to race at Cambridge Raceway and the whole field for that race was tested. The result from COVERT ACTION was 32.7 mmol/L.
a.8 Mr Mitchell was interviewed at his stables on the 4th of May 2011. His record of the interview was produced as an exhibit. He denied administration of any alkali by any means to COVERT ACTION on the 28th of April 2011.
a.9 Mr Mitchell confirmed that the stable feeding regime included Calcium Propionate which is mixed with molasses and water and then poured over dry feed but he said not on race day.
(b)b.1 SKIP BO started in Race 1 the Grand Park Mobile Pace for claiming pacers at the Auckland Trotting Club at Alexandra Park on the 17th of June 2011.
b.2 SKIP BO finished second.
b.3 SKIP BO was one of nine horses tested in the race for TC02 levels.
b.4 The samples were correctly packaged and forwarded to the Racing Laboratory for analysis.
b.5 On the 21st of June 2011 the Racing Laboratory reported to Harness Racing New Zealand that the sample taken from SKIP BO had returned a TC02 result of 36.5 mmol/L. A copy of the Certificate of Analysis dated the 21st of June 2011 was produced.
b.6 SKIP BO although have start number 53 had only one previous TC02 test which was at Addington on the 20th of August 2010 and it recorded a TC02 level of 32.3 mmol/L.
b.7 SKIP BO was subsequently tested on the 8th of July 2011 (twice) and the 14th of July 2011 and it returned TC02 levels of 31.8, 29.5 and 32.4 mmol/L.
b.8 Mr Mitchell was interviewed at his stables on the 23rd of June 2011. His record of the interview was produced as an exhibit. He denied administration of any alkali by any means to SKIP BO on the 17th of June 2011.
b.9 Mr Mitchell confirmed that the stable feeding regime included Calcium Propionate which is mixed with molasses and water and then poured over dry feed but he said not on race day.
(c)c.1 ANVILS DELIGHT started in Race 8 the Placemakers Thames and Whitianga Mobile Pace at the Thames Harness Racing Club’s meeting at Alexandra Park on the 1st of July 2011.
c.2 ANVILS DELIGHT finished second.
c.3 ANVILS DELIGHT was one of eight horses tested in the race for TC02 levels.
c.4 The samples were correctly packaged and forwarded to the Racing Laboratory for analysis.
c.5 On the 5th of July 2011 the Racing Laboratory reported to Harness Racing New Zealand that the sample taken from ANVILS DELIGHT had returned a TC02 result of 36.4 mmol/L. A copy of the Certificate of Analysis dated the 5th of July 2011 was produced.
c.6 Results of the eight samples collected from Race 8 ranged from 29.9 mmol/L to 36.4 mmol/L. The second highest level recorded from the race was 32.7 mmol/L.
c.7 A schedule of all TC02 results taken from ANVILS DELIGHT was presented to the Committee. These show a number of relatively high levels with the highest being 36.4 mmol/L on the 1st of July 2011. None of the other results however exceeded 35.0 mmol/L
c.8 There was subsequent testing of ANVILS DELIGHT which included an unannounced early morning test on the 8th of July 2011, a race night test later that day at Alexandra Park and a further race day test at Alexandra Park on the 15th of July 2011. Results of those tests were 31.0 mmol/L, 32.6 mmol/L and 32.2 mmol/L.
c.9 Mr Lange advised the Committee of the stringent security measures taken in respect to the further testing of both SKIP BO and ANVILS DELIGHT.
c.10 Mr Mitchell was interviewed at his stables on the 7th of July 2011. His record of the interview was produced as an exhibit. He denied administration of any alkali by any means to ANVILS DELIGHT on the 1st of July 2011.
c.11 The Committee was told that Mr Mitchell’s employee Miss Baikie was responsible for the make up of feeds for all horses at Mr Mitchell’s stables. She had denied knowledge of race day administration of any alkali and in particular Calcium Propionate to the horses trained by Mr Mitchell. In her statement Miss Baikie gave details of the feeding regime for the horses at the Mitchell stable.
1.6 All exhibits relating to the TC02 testing documentation, the Certificates of Analysis, Schedule of TC02 test results for each horse, records of interviews with the various veterinarians etc were presented to the Committee.
1.7 Included in the exhibits was a Schedule of TC02 results taken from Mr Mitchell’s horses on the 8th of July 2011. These results included two for SKIP BO and two for ANVIL’S DELIGHT but also seven results taken from other horses trained by Mr Mitchell. The results ranged from 29.4 to 32.6 mmol/L.
1.8 Mr Lange presented to the Committee a Wikipedia definition and description of Calcium Propionate.
1.9 Mr Lange told the Committee that Calcium Propionate is used as a preservative and mould inhibitor in a wide variety of products including bread and other baked products, processed meat, whey and other dairy products.
1.10 He went on to say that Calcium Propionate is a substance that has been in use by some trainers and it does have the effect of elevating TC02 levels. He said it was not a registered animal remedy nor is it a Prohibited Substance under the Rules but it is caught by the provisions of Rule 1004(1A) if administered to a horse and this results in a TC02 level which exceeds the level of 35.0 mmol/L.
1.11 Dr Andrew Grierson then gave evidence in his capacity as Chief Veterinarian of HRNZ and NZTR.
He advised the Committee that he had received from Mr Carmichael the results of a number of pre-race TC02 tests in relation to the horses COVERT ACTION, SKIP BO and ANVILS DELIGHT. He said that as at the 31st of January 2012 the NZ national average of some 27,688 TC02 tests carried out in New Zealand since the 2001/2002 racing season was 30.80 mmol/L.
1.12 Dr Grierson told the Committee that the administration of Calcium Bicarbonate and/or Calcium Propionate to a horse acts as an alkalizing agent and raises the TC02 level in blood samples. He referred to a study conducted in Hong Kong and said that his conclusion was that the daily feeding of Calcium Bicarbonate and/or Calcium Propionate to a horse is unlikely to raise the TC02 level in a pre race blood sample above the threshold of 35.0 mmol/L unless it was administered on the day of the race.
1.13 Dr Grierson also told the Committee that the acid base balance of a horse is maintained by bicarbonate, phosphates and proteins of which bicarbonate is controlled by the Henderson-Hasselbach equation. He explained this equation to the Committee and he then went on to say that when a horse is sick acidosis is the most common finding and the toxins produced result in lowering the pH. He said that this in turn lowers the TC02 level as the body attempts to stabilise the pH. He said that the bicarbonate level drops and veterinarians who treat infections often include alkalizing agents such as bicarbonate in fluid therapy to counter acidosis. He said that except in extreme cases the changes to pH and electrolyte balance is maintained within a close margin and TC02 does not alter appreciably.
1.14 Dr Grierson then went on to say that the threshold of 35.0 mmol/L has been placed well above the average of 30.80 mmol/L and provides a safety margin to account for factors such as pre-race water deprivation, profuse sweating, pre-race transport, excitement causing hyperventilation and other variables which may elevate TC02 levels.
1.15 Dr Grierson also said that Calcium Propionate is not generally used in equine medicine as an electrolyte replacement.
1.16 In giving evidence concerning Calcium Propionate, Dr Grierson was doing so in the knowledge that Mr Mitchell alleged that the three horses concerned, COVERT ACTION, SKIP BO and ANVILS DELIGHT all had respiratory illnesses and that was the reason for the increased TC02 levels.
1.17 Dr Grierson was shown a number of reports from Mr Mitchell’s veterinarians taken in respect to the three horses, COVERT ACTION, SKIP BO and ANVILS DELIGHT. The reports covered earlier steps taken by the veterinarians including in each case a Tracheal Wash. The reports for COVERT ACTION related to steps taken on the 3rd of June 2011, SKIP BO on the 24th of June 2011 and ANVILS DELIGHT on the 1st of August 2011.
1.18 The veterinarians’ comments on those reports suggested that “the findings are consistent with chronic inflammation which may be associated with COPD/chronic irritation.
1.19 Dr Grierson noted that the lung wash tests were taken some weeks after the high TC02 levels which were the subject of these charges. He said that the subsequent veterinarian reports did not prove that the horses were suffering from a respiratory illness on race night.
1.20 Dr Grierson said that as far as he was aware there were no studies done that showed that a horses TC02 level could reach high levels solely because of respiratory illness. He also suggested to the Committee that if the horses were sick and were suffering from respiratory illnesses then it was unlikely that they would have been able to run into a place in their races but in these cases each horse did so.
1.21 Dr Grierson said that the reports from Mr Mitchell’s veterinarians did not show any conclusions which could be related back to race day.
1.22 Under cross examination, Dr Grierson was asked if respiratory acidosis could raise TC02 levels and he said it could. He also said that diseases of the lung could cause respiratory acidosis but he said that bicarbonate levels depend on the time of administration, fluid deprivation and so on.
1.23 Under cross examination, Dr Grierson was further asked about the effects of respiratory infections. He said that a respiratory infection prevents carbon dioxide from being excluded by the horse and does not allow the intake of oxygen.
1.24 He was then asked about horses being given alkalizing agents in their feeds. He said that feeding alone would not support the increase in TC02.
1.25 He was then asked if he had considered a feeding regime together with horses having a respiratory infection. In answer he said that in his opinion the threshold level was high enough to cover that. He also said that feeding and a respiratory illness would be most unlikely to increase the level and certainly sufficient to give a reading above the norm.
1.26 Dr Grierson was then asked if there was anything in Dr Williamson’s Brief of Evidence that was to be presented that he disagreed with. He said that he disagreed with the statement at the bottom of page one because it was too simplistic. That paragraph stated “In my experience, horses that have usually received an administration of bicarbonate or bicarbonate precursors just prior to racing usually give a PC02 reading between 38-40 mmol/L.
1.27 He also said that an alkalizing agent must be given to a horse to raise its level above the threshold.
1.28 In re-examination, Mr Lange asked Dr Grierson about Calcium Propionate being given the night before even to a horse that might have a respiratory infection. He said that the TC02 level peaks 3-5 hours after administration but drops down to normal levels after 24 hours.
1.29 Mr Carmichael gave evidence about the “milkshaking” process. He said that it was normally done by tubing and that the important element in it was the timing.
1.30 Mr Lange advised the Committee that that was the case for the Informant.
Evidence for the Defendant
2.1 Mr Mitchell then gave evidence. He confirmed that he was the Trainer of the three horses at the relevant times and he spoke of the feeding regime that had been set out in his statement.
2.2 He said that he did not give his horses an alkalizing agent and certainly did not do so on race day.
2.3 He said that he started feeding his horses Calcium Propionate in 2008 and that it was used to help the horses to recover after strenuous exercise.
2.4 Mr Mitchell said that Calcium Propionate is given to the horses as an aid in assisting in the recovery of their muscles following strenuous exercise. As the racehorses are high level athletes competing at the most demanding levels he looks to minimise muscle damage and speed up recovery time to minimise any animal welfare issues as a result of their occupation.
2.5 He further added that to the best of his knowledge there are no known dosage recommendations so he guessed that 2 tablespoons per horse would hopefully give the desired effect in aiding recovery of their muscles. For 3 years this dose rate did not raise any concerns or return any high levels in any horses tested this he determined this dose rate appropriate.
2.6 He fed the horses in work 4 measuring cups of Calcium Propionate most nights in a water mix of molasses and 20 litres of water. They were fed this mixture at night prior to racing the following day.
2.7 COVERT ACTION tested for a level of TC02 of 36.4 on 28th April 2011 however as the Calcium Propionate never caused a problem in the previous 3 years he didn’t feel the need to reduce or eliminate this practice from his feeding regime. However as a result of the high level and following subsequent enquiries that he made he was advised that lung infections can elevate the TC02 levels of horses and it was suggested that he investigate this further by getting a lung wash on the affected horse. This procedure was carried out a few days following the high level charge and the horse was found to be suffering chronic inflammation associated with COPD (refer vet report).
2.8 SKIP BO tested for a level of TC02 of 36.5 on 17th June 2011. Mr Mitchell found out on the 23rd of June, the day he was interviewed by Mr Carmichael. Mr Carmichael advised that the Calcium Propionate would be responsible for the elevated levels but could not offer any scientific evidence to support his statement.
After SKIP BO tested at that level Mr Mitchell said he reduced the amount by half in case it was the Calcium Propionate that had lead to the result. When he found out about the second positive he contacted he vet on 24th June 2011 as the only reason he could see why the result came back so high was once again related to an underlying illness. On veterinary advice he took the horse for a lung wash and he too was found to be suffering from a respiratory infection.
2.9 Mr Mitchell said he did not administer Calcium Propionate or any other bicarbonate to any of the horses by tubing or any other method for the purpose of illegally enhancing their performance in a race. He said he did not administer Calcium Propionate in order to have any effect other than to assist in the recovery of muscles following strenuous exercise.
2.10 Mr Mitchell told this Committee that he was a full time professional Trainer and that all he did was training and driving horses. He said that the property that he trained from was owned in partnership with another person and they had a large mortgage on it. He said that he was presently training 23-24 horses. He said that horses was all that he knew.
2.11 He said that the effect of disqualification on him would be disastrous.
2.12 He could not explain how the horses gave high TC02 levels other than the fact that they had respiratory infections and that this was what would have caused it. He has admitted the charges because he has to do so under the absolute liability provisions in the Rules.
2.13 Under cross examination Mr Mitchell was asked if his situation was any different from any other trainer who might suffer disqualification. He acknowledged that the effects on other trainers would be the same.
2.14 He was asked if he accepted the need to maintain integrity in the Industry and he did.
2.15 Mr Mitchell was then asked if he obtained veterinarian advice on the use of Calcium Propionate and he had not nor had he taken any advice on time limits, quantities to use and so on. He said that he began to use Calcium Propionate on the advice of other trainers. He had travelled to America with four or five other trainers in 2008 and they were told that Calcium Propionate was being used there for horses to recover after strenuous exercise.
2.16 Mr Mitchell said that on his return he began using it. He had not had any problems until COVERT ACTION returned a positive test.
2.17 He said after he learned about the level returned by COVERT ACTION he did speak to his vet and the vet suggested that the horse might have had a lung infection and that could have elevated the reading. He did not change the feeding regime.
2.18 He was asked if he learnt about the possible lung infection after the 28th of April 2011 and he said yes. It was pointed out to him by Mr Lange that as a result of the Hearing into the TC02 level returned by VI ET ANIMO 2010 that he learnt about lung infections. He acknowledged that.
2.19 In regards to COVERT ACTION he was asked if there was anything noticeable on race day to show that the horse was unwell and he said that it appeared to be normal. He followed normal pre-race procedure for the horse.
2.20 He said that it had been saline drenched prior to race day and that three days out from race day it was drenched with DMSO which is an anti inflammatory. He was responsible for the drenching.
2.21 He was asked if he did the feeding of the horses and he said no it was done by whichever staff member was working at the time.
2.22 Mr Mitchell was further asked if the horses were given Calcium Propionate in their night feeds regardless of whether they were racing or not and he confirmed that that was the case. He did acknowledge that there may have been errors in the stable.
2.23 He was asked if there could have been a residue of Calcium Propionate in the food bin and he thought that that could happen.
2.24 He said that he was a little bit disappointed with COVERT ACTION because he thought it might go better.
2.25 In respect to SKIP BO he acknowledged that he was with the horse on race day and involved in the prepping and looking after it. He confirmed that there was nothing to indicate that the horse was ill although he said that from memory he thought that there might have been a bit of mucous out of its nose but it was nothing to worry about.
2.26 In respect to ANVILS DELIGHT he said that there were no health issues beforehand or during or after the race. He said that after the raised TC02 level he understood that it might have had a respiratory illness.
2.27 Mr Mitchell said that he had previously had staff problems but he had full confidence in his current staff and particular complete trust in Miss Baikie.
2.28 In answer to questions from the Committee, Mr Mitchell said that he obtained the Calcium Propionate in what were essentially unmarked brown paper bags. Each bag contained 25 kilograms of the product and apart from a label showing the name of the product there was no other information. There certainly were no instructions whatsoever.
2.29 Mr Mitchell then told the Committee that he obtained the Calcium Propionate from a distributor in Auckland. He also confirmed that he did not seek any advice at all from the distributor as to the use of the product.
2.30 Mr Mitchell acknowledged to the Committee that he was blindly using the product and had not sought any proper or professional advice about it at any time. He had used it successfully for a number of years and thought that he was managing it properly.
2.31 He also confirmed to the Committee that after being advised of the level returned by COVERT ACTION he had not changed the feeding regime and then after being notified of the level returned by SKIP BO he had merely reduced the amount that he was giving to the horses
Penalty:
Decision as to Penalty
8.1 The Committee makes the following Orders:
(a) Mr Mitchell is disqualified for a period of one year pursuant to the Rules of Harness Racing. That period of disqualification to commence on the 19th of April 2012 to allow him to make arrangements for his horses.
(b) Pursuant to Rule 1004(8) COVERT ACTION, SKIP BO and ANVILS DELIGHT are disqualified from the races as follows:
(i) COVERT ACTION is disqualified from 3rd place in the Supporters Pack May 19th Mobile Pace at the Cambridge-Te Awamutu Harness HRC Meeting on Thursday the 28th of April 2011.
The horses officially placed 4th through to 13th in that race shall be promoted one placing and stakes paid accordingly.
(ii) SKIP BO is disqualified from 2nd place in the Grand Park Mobile Pace at the Auckland Trotting Club’s Meeting on Friday the 17th of June 2011.
The horses officially placed 3rd through to 9th in that race shall be promoted one placing and stakes paid accordingly.
(iii) ANVILS DELIGHT is disqualified from the 2nd place in the Placemakers Thames and Whitianga Mobile Pace at the Thames Harness Racing Club’s Meeting on Friday the 1st of July 2011.
The horses officially placed 3rd through to 8th in that race shall be promoted one placing and stakes paid accordingly.
(c) Mr Mitchell is ordered to pay JCA costs of $2,150.00.
(d) The Informant has been successful and is entitled to costs. Costs are accordingly reserved pending application by the Informant.
Dated this 20th day of March 2012.
BJ Scott AJ Dooley
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 12/03/2012
Publish Date: 12/03/2012
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.
hearingid: 9ea461448c8247ef2dc5912bb6a3338f
informantnumber: 69183 67323 67328
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 12/03/2012
hearing_title: Non Raceday Inquiry - RIU v TW Mitchell 23 February 2012 - Decision dated 20 March 2012
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
Rules:
1004(1A) & 1004(1), 1004(2), 1004(7) and 1004(8)
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
HELD AT AUCKLAND
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN Mr THOMAS RODNEY CARMICHAEL – Chief Racing Investigator (on behalf of Harness Racing New Zealand)
Informant
AND Mr Todd William Mitchell – Public Trainer and Open Horseman
Defendant
Information No’s: 69183, 67323 & 67328
Venue: Ellerslie Racecourse, Auckland
Judicial Committee: BJ Scott, (Chairman) - AJ Dooley, (Committee Member)
Appearing: Mr CJ Lange – Counsel for the Informant, Mr TR Carmichael – Chief Racing Investigator, Mr C George – Chief Stipendiary Steward, Dr A Grierson – Chief Veterinarian for HRNZ and NZTR, Mr TW Mitchell – in person, Ms MJ Thomas – Counsel for Mr Mitchell (by teleconference), Dr HMG Williamson – Retired Veterinary Surgeon, Miss S Baikie – Stable Employee of Mr Mitchell, Miss V Crawley – In support of Mr Mitchell, Mr B Lichter – Journalist, Mr M Williamson – Registrar
Plea: Admitted
Date of Hearing: 23rd February 2012
Date of Decision: 20th March 2012
DECISION OF JUDICIAL COMMITTEE
1.1 Mr Mitchell faced three charges pursuant to Rules 1004(A), 1004(1) and 1004(2) and that pursuant to those Rules he is liable to a penalty or penalties that may be imposed pursuant to Rule 1004(7) and that the horses concerned shall be liable to the penalties prescribed by Rule 1004(8).
The charges were as follows:
(a) On the 28th day of April 2011 Todd William Mitchell was the Trainer and the person for the time being in charge of the horse COVERT ACTION which was presented to race in race 4, the Supporters Pack May 19th Mobile Pace, at a race meeting conducted by the Cambridge-Te Awamutu Harness Racing Club at Cambridge Raceway, when a pre-race blood sample taken from COVERT ACTION was found upon analysis to have a TC02 level of 36.4 mmol/L, in breach of the provisions of Rules 1004(1A), 1004(1) and 1004(2).
(b) On the 17th day of June 2011 Todd William Mitchell was the trainer and the person for the time being in charge of the horse SKIP BO which was presented to race in race 1, the Grand Hotel Mobile Pace, at a race meeting conducted by the Auckland Trotting Club at Alexandra Park, when a pre-race blood sample taken from SKIP BO was found upon analysis to have a TC02 level of 36.5 mmol/L, in breach of the provisions of Rule 1004(1A), 1004(1) and 1004(2) of the Rules of Harness Racing.
(c) On the 1st day of July 2011 Todd William Mitchell was the person for the time being in charge of the horse ANVILS DELIGHT which was presented to race in race 8, the Placemakers Thames and Whitianga Mobile Pace, at a race meeting conducted by the Thames Harness Racing Club at Alexandra Park, when a pre-race blood sample taken from ANVILS DELIGHT was found upon analysis to have a TC02 level of 36.4 mmol/L, in breach of the provisions of Rule 1004(1A) and 1004(3) of the Rules of Harness Racing.
1.2 The Operations Manager of the Racing Integrity Unit by letters to Mr Carmichael had given approval for the charges to be lodged against Mr Mitchell.
1.3 Information No. 67326 had been issued against Mr Phillip Benjiman Burrows as the official Trainer of the horse ANVILS DELIGHT. At the outset of this Hearing Mr Lange sought leave to withdraw that Information on the basis that Mr Burrows was not involved prior to or at the time that ANVILS DELIGHT raced on the 1st of July 2011 and that Mr Mitchell had accepted responsibility.
The Information was withdrawn by leave.
1.4 Rules 1004(1), (1A), (2) and (3), Rule 1005, Rule 1004(C), Rule 1008 and Rule 1008(A) provide as follows:
1004 (1) A horse shall be presented for a race free from prohibited substances.
(1A) A horse shall be presented for a race with a total carbon dioxide level at or below the level of 35.0 mill moles per litre in plasma.
(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with Sub-Rule (1) the Trainer of the horse commits a breach of these Rules.
(3) Where a person is left in charge of a horse, and the horse is taken, or is to be taken to a racecourse for the purpose of engaging in a race, otherwise than in accordance with Sub-Rule (1), the Trainer of the horse and the person left in charge both commit a breach of these Rules.
Rule 1005 – Definition of Prohibited Substance
PROHIBITED SUBSTANCE means:
(a) any substance capable of affecting the speed, stamina, courage or conduct of a horse by its actions upon the central or peripheral nervous system, or the cardio-vascular, respiratory, alimentary-digestive, musculoskeletal or urogenital systems, and
(b) any substance set out in the Prohibited Substance Regulations; and
(c) metabolites, artefacts and isomers of the prohibited substances prescribed by paragraphs (a) and/or (b) hereof.
Rule 1004(C)
The Executive may make regulations (the “Prohibited Substance Regulations”) which lists substances, or categories of substances, as prohibited substances and may include in such list, levels for substances below which are excepted as prohibited substances.
Prohibited Substance Regulations
These regulations made by the Executive pursuant to the Rules of Harness Racing shall be referred to as the Prohibited Substance Regulations.
The following substances shall be prohibited substances:
(a) ….
(b) substances falling with the following categories of substances:
Alkalinising agents
The following substances when present at or below the levels set are excepted as prohibited substances:
(a) Alkalising agents, when evidenced by total carbon dioxide (TC02) present at a concentration of 35.0 millimoles per litre.
Rule 1008
In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:
(a) it shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule: and
(b) any breach of a Rule shall be considered as an offence of strict liability.
Rule 1008A
Where in any proceeding, any matter is required to be proved by an informant or defendant, the standard of proof shall be the balance of probabilities.
The effect of these Rules is clear. Where a horse is presented to race with a TC02 above 35mmol/L the horse is deemed to be presented in breach of the Prohibited Substance Rules (Rule 1004). It is not necessary for the informant to prove what has caused the elevated level or the person responsible.
The Rule imposes a strict obligation on the trainer, or person in charge, to ensure the horse is presented free of prohibited substance.
1.5 Mr Lange presented a statement of facts relating to each charge and those facts were as follows:
(a)a.1 COVERT ACTION started in Race 4 the Supporters Pack May 19th Mobile Pace at the Cambridge-Te Awamutu Harness Racing Club Meeting at Cambridge Raceway on the 28th of April 2011.
a.2 The horse finished third.
a.3 COVERT ACTION was one of five horses tested in the race and these were horses that had not previously been tested for TC02 levels.
a.4 The samples were correctly packaged and forwarded to the Racing Laboratory for analysis.
a.5 On the 4th of May 2011 the Racing Laboratory reported to Harness Racing New Zealand that the sample taken from COVERT ACTION had returned a TC02 result of 36.4 mmol/L. The Certificate of Analysis was dated the 2nd of May 2011.
a.6 On the 5th of May 2011 a blood sample was taken from COVERT ACTION at Mr Mitchell’s stables. That sample was sent to the Racing Laboratory for analysis and returned a TC02 level of 30.8 mmol/L.
a.7 On the 12th of May 2011 COVERT ACTION was presented to race at Cambridge Raceway and the whole field for that race was tested. The result from COVERT ACTION was 32.7 mmol/L.
a.8 Mr Mitchell was interviewed at his stables on the 4th of May 2011. His record of the interview was produced as an exhibit. He denied administration of any alkali by any means to COVERT ACTION on the 28th of April 2011.
a.9 Mr Mitchell confirmed that the stable feeding regime included Calcium Propionate which is mixed with molasses and water and then poured over dry feed but he said not on race day.
(b)b.1 SKIP BO started in Race 1 the Grand Park Mobile Pace for claiming pacers at the Auckland Trotting Club at Alexandra Park on the 17th of June 2011.
b.2 SKIP BO finished second.
b.3 SKIP BO was one of nine horses tested in the race for TC02 levels.
b.4 The samples were correctly packaged and forwarded to the Racing Laboratory for analysis.
b.5 On the 21st of June 2011 the Racing Laboratory reported to Harness Racing New Zealand that the sample taken from SKIP BO had returned a TC02 result of 36.5 mmol/L. A copy of the Certificate of Analysis dated the 21st of June 2011 was produced.
b.6 SKIP BO although have start number 53 had only one previous TC02 test which was at Addington on the 20th of August 2010 and it recorded a TC02 level of 32.3 mmol/L.
b.7 SKIP BO was subsequently tested on the 8th of July 2011 (twice) and the 14th of July 2011 and it returned TC02 levels of 31.8, 29.5 and 32.4 mmol/L.
b.8 Mr Mitchell was interviewed at his stables on the 23rd of June 2011. His record of the interview was produced as an exhibit. He denied administration of any alkali by any means to SKIP BO on the 17th of June 2011.
b.9 Mr Mitchell confirmed that the stable feeding regime included Calcium Propionate which is mixed with molasses and water and then poured over dry feed but he said not on race day.
(c)c.1 ANVILS DELIGHT started in Race 8 the Placemakers Thames and Whitianga Mobile Pace at the Thames Harness Racing Club’s meeting at Alexandra Park on the 1st of July 2011.
c.2 ANVILS DELIGHT finished second.
c.3 ANVILS DELIGHT was one of eight horses tested in the race for TC02 levels.
c.4 The samples were correctly packaged and forwarded to the Racing Laboratory for analysis.
c.5 On the 5th of July 2011 the Racing Laboratory reported to Harness Racing New Zealand that the sample taken from ANVILS DELIGHT had returned a TC02 result of 36.4 mmol/L. A copy of the Certificate of Analysis dated the 5th of July 2011 was produced.
c.6 Results of the eight samples collected from Race 8 ranged from 29.9 mmol/L to 36.4 mmol/L. The second highest level recorded from the race was 32.7 mmol/L.
c.7 A schedule of all TC02 results taken from ANVILS DELIGHT was presented to the Committee. These show a number of relatively high levels with the highest being 36.4 mmol/L on the 1st of July 2011. None of the other results however exceeded 35.0 mmol/L
c.8 There was subsequent testing of ANVILS DELIGHT which included an unannounced early morning test on the 8th of July 2011, a race night test later that day at Alexandra Park and a further race day test at Alexandra Park on the 15th of July 2011. Results of those tests were 31.0 mmol/L, 32.6 mmol/L and 32.2 mmol/L.
c.9 Mr Lange advised the Committee of the stringent security measures taken in respect to the further testing of both SKIP BO and ANVILS DELIGHT.
c.10 Mr Mitchell was interviewed at his stables on the 7th of July 2011. His record of the interview was produced as an exhibit. He denied administration of any alkali by any means to ANVILS DELIGHT on the 1st of July 2011.
c.11 The Committee was told that Mr Mitchell’s employee Miss Baikie was responsible for the make up of feeds for all horses at Mr Mitchell’s stables. She had denied knowledge of race day administration of any alkali and in particular Calcium Propionate to the horses trained by Mr Mitchell. In her statement Miss Baikie gave details of the feeding regime for the horses at the Mitchell stable.
1.6 All exhibits relating to the TC02 testing documentation, the Certificates of Analysis, Schedule of TC02 test results for each horse, records of interviews with the various veterinarians etc were presented to the Committee.
1.7 Included in the exhibits was a Schedule of TC02 results taken from Mr Mitchell’s horses on the 8th of July 2011. These results included two for SKIP BO and two for ANVIL’S DELIGHT but also seven results taken from other horses trained by Mr Mitchell. The results ranged from 29.4 to 32.6 mmol/L.
1.8 Mr Lange presented to the Committee a Wikipedia definition and description of Calcium Propionate.
1.9 Mr Lange told the Committee that Calcium Propionate is used as a preservative and mould inhibitor in a wide variety of products including bread and other baked products, processed meat, whey and other dairy products.
1.10 He went on to say that Calcium Propionate is a substance that has been in use by some trainers and it does have the effect of elevating TC02 levels. He said it was not a registered animal remedy nor is it a Prohibited Substance under the Rules but it is caught by the provisions of Rule 1004(1A) if administered to a horse and this results in a TC02 level which exceeds the level of 35.0 mmol/L.
1.11 Dr Andrew Grierson then gave evidence in his capacity as Chief Veterinarian of HRNZ and NZTR.
He advised the Committee that he had received from Mr Carmichael the results of a number of pre-race TC02 tests in relation to the horses COVERT ACTION, SKIP BO and ANVILS DELIGHT. He said that as at the 31st of January 2012 the NZ national average of some 27,688 TC02 tests carried out in New Zealand since the 2001/2002 racing season was 30.80 mmol/L.
1.12 Dr Grierson told the Committee that the administration of Calcium Bicarbonate and/or Calcium Propionate to a horse acts as an alkalizing agent and raises the TC02 level in blood samples. He referred to a study conducted in Hong Kong and said that his conclusion was that the daily feeding of Calcium Bicarbonate and/or Calcium Propionate to a horse is unlikely to raise the TC02 level in a pre race blood sample above the threshold of 35.0 mmol/L unless it was administered on the day of the race.
1.13 Dr Grierson also told the Committee that the acid base balance of a horse is maintained by bicarbonate, phosphates and proteins of which bicarbonate is controlled by the Henderson-Hasselbach equation. He explained this equation to the Committee and he then went on to say that when a horse is sick acidosis is the most common finding and the toxins produced result in lowering the pH. He said that this in turn lowers the TC02 level as the body attempts to stabilise the pH. He said that the bicarbonate level drops and veterinarians who treat infections often include alkalizing agents such as bicarbonate in fluid therapy to counter acidosis. He said that except in extreme cases the changes to pH and electrolyte balance is maintained within a close margin and TC02 does not alter appreciably.
1.14 Dr Grierson then went on to say that the threshold of 35.0 mmol/L has been placed well above the average of 30.80 mmol/L and provides a safety margin to account for factors such as pre-race water deprivation, profuse sweating, pre-race transport, excitement causing hyperventilation and other variables which may elevate TC02 levels.
1.15 Dr Grierson also said that Calcium Propionate is not generally used in equine medicine as an electrolyte replacement.
1.16 In giving evidence concerning Calcium Propionate, Dr Grierson was doing so in the knowledge that Mr Mitchell alleged that the three horses concerned, COVERT ACTION, SKIP BO and ANVILS DELIGHT all had respiratory illnesses and that was the reason for the increased TC02 levels.
1.17 Dr Grierson was shown a number of reports from Mr Mitchell’s veterinarians taken in respect to the three horses, COVERT ACTION, SKIP BO and ANVILS DELIGHT. The reports covered earlier steps taken by the veterinarians including in each case a Tracheal Wash. The reports for COVERT ACTION related to steps taken on the 3rd of June 2011, SKIP BO on the 24th of June 2011 and ANVILS DELIGHT on the 1st of August 2011.
1.18 The veterinarians’ comments on those reports suggested that “the findings are consistent with chronic inflammation which may be associated with COPD/chronic irritation.
1.19 Dr Grierson noted that the lung wash tests were taken some weeks after the high TC02 levels which were the subject of these charges. He said that the subsequent veterinarian reports did not prove that the horses were suffering from a respiratory illness on race night.
1.20 Dr Grierson said that as far as he was aware there were no studies done that showed that a horses TC02 level could reach high levels solely because of respiratory illness. He also suggested to the Committee that if the horses were sick and were suffering from respiratory illnesses then it was unlikely that they would have been able to run into a place in their races but in these cases each horse did so.
1.21 Dr Grierson said that the reports from Mr Mitchell’s veterinarians did not show any conclusions which could be related back to race day.
1.22 Under cross examination, Dr Grierson was asked if respiratory acidosis could raise TC02 levels and he said it could. He also said that diseases of the lung could cause respiratory acidosis but he said that bicarbonate levels depend on the time of administration, fluid deprivation and so on.
1.23 Under cross examination, Dr Grierson was further asked about the effects of respiratory infections. He said that a respiratory infection prevents carbon dioxide from being excluded by the horse and does not allow the intake of oxygen.
1.24 He was then asked about horses being given alkalizing agents in their feeds. He said that feeding alone would not support the increase in TC02.
1.25 He was then asked if he had considered a feeding regime together with horses having a respiratory infection. In answer he said that in his opinion the threshold level was high enough to cover that. He also said that feeding and a respiratory illness would be most unlikely to increase the level and certainly sufficient to give a reading above the norm.
1.26 Dr Grierson was then asked if there was anything in Dr Williamson’s Brief of Evidence that was to be presented that he disagreed with. He said that he disagreed with the statement at the bottom of page one because it was too simplistic. That paragraph stated “In my experience, horses that have usually received an administration of bicarbonate or bicarbonate precursors just prior to racing usually give a PC02 reading between 38-40 mmol/L.
1.27 He also said that an alkalizing agent must be given to a horse to raise its level above the threshold.
1.28 In re-examination, Mr Lange asked Dr Grierson about Calcium Propionate being given the night before even to a horse that might have a respiratory infection. He said that the TC02 level peaks 3-5 hours after administration but drops down to normal levels after 24 hours.
1.29 Mr Carmichael gave evidence about the “milkshaking” process. He said that it was normally done by tubing and that the important element in it was the timing.
1.30 Mr Lange advised the Committee that that was the case for the Informant.
Evidence for the Defendant
2.1 Mr Mitchell then gave evidence. He confirmed that he was the Trainer of the three horses at the relevant times and he spoke of the feeding regime that had been set out in his statement.
2.2 He said that he did not give his horses an alkalizing agent and certainly did not do so on race day.
2.3 He said that he started feeding his horses Calcium Propionate in 2008 and that it was used to help the horses to recover after strenuous exercise.
2.4 Mr Mitchell said that Calcium Propionate is given to the horses as an aid in assisting in the recovery of their muscles following strenuous exercise. As the racehorses are high level athletes competing at the most demanding levels he looks to minimise muscle damage and speed up recovery time to minimise any animal welfare issues as a result of their occupation.
2.5 He further added that to the best of his knowledge there are no known dosage recommendations so he guessed that 2 tablespoons per horse would hopefully give the desired effect in aiding recovery of their muscles. For 3 years this dose rate did not raise any concerns or return any high levels in any horses tested this he determined this dose rate appropriate.
2.6 He fed the horses in work 4 measuring cups of Calcium Propionate most nights in a water mix of molasses and 20 litres of water. They were fed this mixture at night prior to racing the following day.
2.7 COVERT ACTION tested for a level of TC02 of 36.4 on 28th April 2011 however as the Calcium Propionate never caused a problem in the previous 3 years he didn’t feel the need to reduce or eliminate this practice from his feeding regime. However as a result of the high level and following subsequent enquiries that he made he was advised that lung infections can elevate the TC02 levels of horses and it was suggested that he investigate this further by getting a lung wash on the affected horse. This procedure was carried out a few days following the high level charge and the horse was found to be suffering chronic inflammation associated with COPD (refer vet report).
2.8 SKIP BO tested for a level of TC02 of 36.5 on 17th June 2011. Mr Mitchell found out on the 23rd of June, the day he was interviewed by Mr Carmichael. Mr Carmichael advised that the Calcium Propionate would be responsible for the elevated levels but could not offer any scientific evidence to support his statement.
After SKIP BO tested at that level Mr Mitchell said he reduced the amount by half in case it was the Calcium Propionate that had lead to the result. When he found out about the second positive he contacted he vet on 24th June 2011 as the only reason he could see why the result came back so high was once again related to an underlying illness. On veterinary advice he took the horse for a lung wash and he too was found to be suffering from a respiratory infection.
2.9 Mr Mitchell said he did not administer Calcium Propionate or any other bicarbonate to any of the horses by tubing or any other method for the purpose of illegally enhancing their performance in a race. He said he did not administer Calcium Propionate in order to have any effect other than to assist in the recovery of muscles following strenuous exercise.
2.10 Mr Mitchell told this Committee that he was a full time professional Trainer and that all he did was training and driving horses. He said that the property that he trained from was owned in partnership with another person and they had a large mortgage on it. He said that he was presently training 23-24 horses. He said that horses was all that he knew.
2.11 He said that the effect of disqualification on him would be disastrous.
2.12 He could not explain how the horses gave high TC02 levels other than the fact that they had respiratory infections and that this was what would have caused it. He has admitted the charges because he has to do so under the absolute liability provisions in the Rules.
2.13 Under cross examination Mr Mitchell was asked if his situation was any different from any other trainer who might suffer disqualification. He acknowledged that the effects on other trainers would be the same.
2.14 He was asked if he accepted the need to maintain integrity in the Industry and he did.
2.15 Mr Mitchell was then asked if he obtained veterinarian advice on the use of Calcium Propionate and he had not nor had he taken any advice on time limits, quantities to use and so on. He said that he began to use Calcium Propionate on the advice of other trainers. He had travelled to America with four or five other trainers in 2008 and they were told that Calcium Propionate was being used there for horses to recover after strenuous exercise.
2.16 Mr Mitchell said that on his return he began using it. He had not had any problems until COVERT ACTION returned a positive test.
2.17 He said after he learned about the level returned by COVERT ACTION he did speak to his vet and the vet suggested that the horse might have had a lung infection and that could have elevated the reading. He did not change the feeding regime.
2.18 He was asked if he learnt about the possible lung infection after the 28th of April 2011 and he said yes. It was pointed out to him by Mr Lange that as a result of the Hearing into the TC02 level returned by VI ET ANIMO 2010 that he learnt about lung infections. He acknowledged that.
2.19 In regards to COVERT ACTION he was asked if there was anything noticeable on race day to show that the horse was unwell and he said that it appeared to be normal. He followed normal pre-race procedure for the horse.
2.20 He said that it had been saline drenched prior to race day and that three days out from race day it was drenched with DMSO which is an anti inflammatory. He was responsible for the drenching.
2.21 He was asked if he did the feeding of the horses and he said no it was done by whichever staff member was working at the time.
2.22 Mr Mitchell was further asked if the horses were given Calcium Propionate in their night feeds regardless of whether they were racing or not and he confirmed that that was the case. He did acknowledge that there may have been errors in the stable.
2.23 He was asked if there could have been a residue of Calcium Propionate in the food bin and he thought that that could happen.
2.24 He said that he was a little bit disappointed with COVERT ACTION because he thought it might go better.
2.25 In respect to SKIP BO he acknowledged that he was with the horse on race day and involved in the prepping and looking after it. He confirmed that there was nothing to indicate that the horse was ill although he said that from memory he thought that there might have been a bit of mucous out of its nose but it was nothing to worry about.
2.26 In respect to ANVILS DELIGHT he said that there were no health issues beforehand or during or after the race. He said that after the raised TC02 level he understood that it might have had a respiratory illness.
2.27 Mr Mitchell said that he had previously had staff problems but he had full confidence in his current staff and particular complete trust in Miss Baikie.
2.28 In answer to questions from the Committee, Mr Mitchell said that he obtained the Calcium Propionate in what were essentially unmarked brown paper bags. Each bag contained 25 kilograms of the product and apart from a label showing the name of the product there was no other information. There certainly were no instructions whatsoever.
2.29 Mr Mitchell then told the Committee that he obtained the Calcium Propionate from a distributor in Auckland. He also confirmed that he did not seek any advice at all from the distributor as to the use of the product.
2.30 Mr Mitchell acknowledged to the Committee that he was blindly using the product and had not sought any proper or professional advice about it at any time. He had used it successfully for a number of years and thought that he was managing it properly.
2.31 He also confirmed to the Committee that after being advised of the level returned by COVERT ACTION he had not changed the feeding regime and then after being notified of the level returned by SKIP BO he had merely reduced the amount that he was giving to the horses
sumissionsforpenalty:
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penalty:
Decision as to Penalty
8.1 The Committee makes the following Orders:
(a) Mr Mitchell is disqualified for a period of one year pursuant to the Rules of Harness Racing. That period of disqualification to commence on the 19th of April 2012 to allow him to make arrangements for his horses.
(b) Pursuant to Rule 1004(8) COVERT ACTION, SKIP BO and ANVILS DELIGHT are disqualified from the races as follows:
(i) COVERT ACTION is disqualified from 3rd place in the Supporters Pack May 19th Mobile Pace at the Cambridge-Te Awamutu Harness HRC Meeting on Thursday the 28th of April 2011.
The horses officially placed 4th through to 13th in that race shall be promoted one placing and stakes paid accordingly.
(ii) SKIP BO is disqualified from 2nd place in the Grand Park Mobile Pace at the Auckland Trotting Club’s Meeting on Friday the 17th of June 2011.
The horses officially placed 3rd through to 9th in that race shall be promoted one placing and stakes paid accordingly.
(iii) ANVILS DELIGHT is disqualified from the 2nd place in the Placemakers Thames and Whitianga Mobile Pace at the Thames Harness Racing Club’s Meeting on Friday the 1st of July 2011.
The horses officially placed 3rd through to 8th in that race shall be promoted one placing and stakes paid accordingly.
(c) Mr Mitchell is ordered to pay JCA costs of $2,150.00.
(d) The Informant has been successful and is entitled to costs. Costs are accordingly reserved pending application by the Informant.
Dated this 20th day of March 2012.
BJ Scott AJ Dooley
Chairman Committee Member
hearing_type: Non-race day
Rules: 1004(A), 1004(1) and 1004(2)
Informant: Mr TR Carmichalel - Chief Racing Investigator on behalf of Racing Integrity Unit
JockeysandTrainer:
Otherperson:
PersonPresent: Mr CJ Lange - Counsel for the Informant, Mr C George -Chief Stipendiary Steward, Dr A Grierson - Chief Veterinarian for HRNZ and NZTR, MS MJ Thomas - Counsel for Mr Mitchell (by teleconference), Dr HM Williamson - Retired Veterinary Surgeon, Miss S Baikie - Stable employee of Mr Mitchell, Miss V Crawley - In support of Mr Mitchell, Mr B Lichter - Journalist, Mr M Williamson - Registrar
Respondent: Mr T W Mitchell - Public Trainer and Open Horseman
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