NRI – Messrs McGrath Keast Burrows Penalty

hearingid: 80d27b695ccea30642b99eca7bfb5be6

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: NRI - Messrs McGrath Keast Burrows Penalty

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Having found a breach of Rule 1001 (1) (q) by the Defendant Nigel Raymond McGrath in respect of three charges; and one breach of Rule 1004 by each of the Defendants Philip Benjamin Burrows and James Keast, the Committee reserved the question of penalty pending receipt of submissions from Counsel for each party.

Informant

Defendants

CHRISTCHURCH

JR RAPLEY Counsel for Keast

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Having found a breach of Rule 1001 (1) (q) by the Defendant Nigel Raymond McGrath in respect of three charges; and one breach of Rule 1004 by each of the Defendants Philip Benjamin Burrows and James Keast, the Committee reserved the question of penalty pending receipt of submissions from Counsel for each party. Those submissions have now been duly received and considered.

Summarising submissions by Mr. Hall as Counsel for the Defendants McGrath & Burrows he submits as follows:

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1. The defence issues on a) interpretation of the Prohibited Substance Rule & Regulations and b) whether Propantheline bromide was capable of affecting performance were raised by them after having received professional legal and forensic opinion and which may yet result in clarifying amendments to the Rules. Therefore they should not be penalized for having tested these matters by any significant costs penalty.
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2. Given that the Prohibited Substance Regulations became law on or about 15 February 2004 and that equipment for testing for Propantheline Bromide and its metabolites did not become available until after 17 May 2004, trainers and others involved in the industry should have been notified.
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3.     Any pre race feeding involving administration of Propantheline Bromide has not been proved to have been deliberate and is therefore a far less serious state of affairs than a deliberate or knowing act of administration and this should be reflected in the penalty.

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4.      The three positives could just as easily be the result of a common mistake and inadvertent feeding to the horses as the consequence of any deliberate or intentional conduct.

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5.      Mr. McGrath has been in the harness industry since leaving school at the age of 15 years. He is now 30 years old having held a training license on his own account for the last five years. At no stage has he been charged with or convicted of any offence relating to the Rules of Racing.

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6.        He trains horses on a 45 acre property at Weedons and has a mortgage of $270,000 and other commitments of approximately $40,000. He employs three full time and three casual workers with 35-40 horses in training at any one time. He is a Committee member of the Trainers & Drivers Association.

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7.         He would face, if disqualified, difficulty in obtaining other employment and the loss of half a lifetime of hard work in the industry. This would be, he submitted, out of all proportion to the culpability and offending disclosed.

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8.       He produced testimonials from Derek G Jones, Anthony Butt, Graham Beirne and Paul Renwick, the latter two being owners with horses in the stable, all corroborating his integrity and character. He will be repaying the lost stakes to his client owners and will be meeting any legal expenses, costs and fines resulting from these charges against him and his two staff members.

9.       He submitted that the Committee should acknowledge this as a first offence and, because of the foregoing circumstances, step back from disqualification and impose monetary penalties.

10.     He accepts that he has let the industry down and is very remorseful about that. He has otherwise been open and honest with all the authorities and it should be noted that the Police do not intend prosecuting him for any offence surrounding the "Blue Magic" doping scandal. He does not see himself as a drug cheat and deserves a second chance to restore his reputation. Any penalty other than a fine should be limited to a suspension of short duration, say one month to send the appropriate message to likeminded persons. Any more than that, such as that sought by the informant, would be manifestly excessive.

In respect of the defendant Burrows it was submitted that he is 33 years old, involved in harness racing for fifteen years. It is not only the industry he works in, it is his lifetime passion. He has never been charged or convicted of any offence under the Harness Racing Rules nor for that matter has he had any criminal convictions either.

It being a first offence and less serious, it is submitted, a fine would be the appropriate penalty.

The submissions made by Mr. Rapley for the defendant James Keast were, in summary, as follows:

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1. While the Prohibited Substance Rule is a rule of strict liability so that intent or culpability of a defendant is irrelevant, when determining liability it is highly relevant when considering penalty.

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2. This is a first offence and the first time he has appeared before the Judicial Committee.
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3. He has been involved in the Harness Racing Industry for 17 years and as of August 2004 had decided not to renew any of his licenses.
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4. It was purely by chance and under instructions as an employee he came to be with the horse. He did not feed it and had no ongoing relationship at all.
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5. He is self employed, part time as a farrier. He has two young boys in his care with a significant mortgage to service and other debts.

6. His lack of culpability or blameworthiness in this case is met by disqualifying the horse and ordering repayment of the stake and is sufficient penalty in itself to act as a message to the industry in a deterrent way.

For the informant, Harness Racing New Zealand the main submissions by Mr. Lange were as follows:

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1. The Scheme of the Rules is clear and serious racing offences are to be viewed as they are described, that is, serious offences for which significant penalties can be imposed.
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2. Trainers have a clear obligation to ensure that a horse races drug free and they need to exercise a high degree of care and vigilance. This has been repeatedly stated in previous decisions and he referred in particular to Coulson (1993), Racing Appeal Reports, Nicholson (1994), Racing Appeal Reports, and Lamb (1998), Racing Appeal Reports.
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3.       Other sporting bodies take a stern view of doping violations and he referred to the New Zealand Sports Drug Agency and the World Anti-Doping Code, which has received, received international adoption including by the Government of New Zealand.

4.       As a starting point for a first breach of a drug free racing rule such as Rule 1001 (1) (q) a penalty of not less than two years disqualification is appropriate for one breach. Where there are, as here, multiple breaches the starting point may be higher.

5.      For a breach of Rule 1004 he acknowledged that fines have been imposed, but in multiple breaches, terms of disqualification have been imposed.

6.       In Bentley 4.7.98, an informant's appeal against penalty for a breach of the Drug Negligence Rule, the Appeal Tribunal noted the case involved gross negligence and increased the fine to $3,000 and costs to $1,500. It did not interfere with the Judicial Committee's exercise of discretion not to disqualify or suspend but noted:

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"?. this Appeal Tribunal sends a very strong warning that, in the future, inquiries involving a breach of Rule 1004 (2) could well be met with a period of disqualification or suspension of any license held by the individual committing such a breach."

7.      In Thornley 25.1.02 the Appeals Tribunal upheld disqualification for repeated breaches of the then Drug Negligence Rule.

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8.       In this instance, he submitted, there being three instances where horses did not race drug free, the appropriate starting point would be a term of disqualification running into a number of years, together with the imposition of a monetary penalty.

9.       From that starting point however, the Informant readily acknowledged there were mitigating factors, which would otherwise reduce that sentence including no previous breaches for drug-prohibited substance rules, being co-operative throughout the investigation and readily acknowledging the source of the prohibited substance. It is accepted also that this inquiry in no way involves allegations of the use of "Blue Magic" and that this, as a result of reporting by some sections of the media, has received media coverage which has had a significant impact to Mr. McGrath both professionally and personally, and to members of his family.

10.     On the other hand there are aggravating features to consider in that Mr. McGrath accepted the treatment has improved performance; and despite a self imposed 7 day withholding time there have been three instances where horses have had administered or have ingested, propantheline in close proximity to racing, it being detectable only for 15.5 to 23.5 hours after administration; also in the absence of an admission, it was always difficult, and often not possible, to establish whether the administration were deliberate, accidental or as a result of recklessness, negligence or gross neglect. In this case where there were three positive swabs, one in Auckland, and one in Christchurch on the same day, and a third a week later (on a horse taken from Christchurch to Dunedin) it tends to support a deliberate administration or at the very least gross neglect.

11.       In summary Mr. Lange submitted that in this matter after allowing for mitigating factors:

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1. In the case of McGrath, disqualification should be imposed for not less than three years with a fine and costs.
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2. In respect of Burrows, disqualification should be imposed for not less than 6 months with a fine and costs.
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3. In the case of Keast, not currently the holder of a license, disqualification of not less than 3 months with a fine and costs.

The Committee has considered all the submissions as summarized above and has also reviewed the various decisions quoted to it by Counsel. It notes the penalty regime of the Rules falls within three general tiers. These are:

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1. For general breaches of the rules a penalty of a fine not exceeding $5,000 and or suspension or disqualification for a period not exceeding twelve months.
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2. For a breach of the prohibited substance rule (formerly referred to as drug negligence) a fine not exceeding $10,000 and or suspension or disqualification for a period not exceeding five years.
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3. For serious racing offences (formerly referred to as corrupt practices) a fine not exceeding $25,000 and or suspension or disqualification for a period up to life.

Historically breaches of the drug negligence rule have tended to be dealt with by way of fines except for multiple or repeat breaches in which case terms of suspension or disqualification have been imposed. For serious racing offences breaches have in recent years incurred suspensions or disqualifications of two years with fines of up to $6,250, which was imposed in Howard's case for two breaches and upheld on appeal.

Throughout this period there have been repeated warnings of the responsibility imposed on trainers and others involved with the presentation of horses for racing to ensure that a horse races drug free.

In Coulson (1993) Racing Appeal Reports it was stated: -

"The problems about drug-free racing have been emphasized from time to time, and this Authority has repeatedly pointed out there is a heavy obligation on the part of those who bring horses to a harness racing meeting to ensure that the rules in all relevant respects have been complied with, and we are satisfied that in this particular case the appellant failed to take adequate steps to ensure that the horse was in fact drug free."

In Nicholson (1994) Racing Appeal Reports the Authority stated at 945: -

"We say again what we have said before, and that is that those who are responsible for the training of horses or other animals in any racing code are subject to a very onerous obligation to ensure that the Rules of Racing, Harness Racing or Greyhound Racing, in relation to drug-related matters are firmly adhered to. It is not sufficient ? and this Authority does not regard it as sufficient ? for a person who has this responsibility under the Rules, and whose horse returns a positive swab, simply to say: "I did not know there was anything wrong with the product." To feed a horse an unknown product before it was to race is, at the very least, to act with gross negligence.

There is an obligation to ensure drug-free racing. That can only be achieved by those who are in charge of the relevant horses taking all reasonable steps to ensure that the substance, which it is intended to feed to the horse, will not breach the Rules.

There is nothing more likely to bring down the integrity of the racing industry generally than the fact that horses perform at meetings when they have been administered, whether innocently or for some ulterior motive, a prohibited substance. It is our obligation to deter that practice, and in this respect our remarks are not only addressed to the harness racing industry, but to all racing codes within the industry. It is well known that the circumstances, which surround the administration of a prohibited substance, are not and cannot easily be determined accurately, even by intensive inquiry. The present rules are so drawn as to take account of that fact."

This Committee accepts the very clear message set out above and in the other reports to which it has been referred. Despite the submissions by Mr. Hall it is just not appropriate to deal with three breaches of Rule 1001 (1) (q) by way of a fine and suspension of short duration. Harness Racing has recently intensified its determination to ensure the industry is drug-free with new rules and regulations, which have been well publicized in Harness Weekly. It is not accepted that trainers and others have not been notified nor is it accepted that there should have been some specific warning about Propantheline bromide and the availability of equipment capable of testing for its presence.

While this may be the first time it has been the subject of a positive in New Zealand it has previously been found in New South Wales in 1998 and was the subject of a charge against Ted Demmler for which a disqualification of nine months was imposed by stewards at Harold Park and upheld on Appeal. The Appeal Tribunal did not accept that the drug was purely therapeutic as argued and noted it had been detected previously in 1997 in Sydney.

There is an increased public media and political expectation that the use of drugs in sport be responded to by code authorities in an uncompromising, determined and credible manner. Those who fail to meet these expectations face loss of public support and confidence, risk flight of sponsors and financial backers and erosion of participation.

In racing's case it is not just loss of public betting support which is at risk but the integrity of its breeding products and the livelihoods of those employed in the industry; quite apart from the need to protect those who follow the rules and suffer as a consequence from the actions of those who do not. Harness Racing is currently experiencing real challenges to its integrity and has very publicly suffered considerable reputational harm as a result.

Taken together these factors now demand a step change in the level of penalty for breaches of the code's drug rules. Judicial Committees must therefore consider disqualification as the norm for drug related breaches if racing is to provide the essential assurance that it is serious about drug-free racing. In cases of multiple offending that must inevitably be reflected in a longer period of disqualification compared with a single event but in every case this Committee believes there is need for a new approach to the term to be imposed to take into account the concerns set out above.

Even taking into account, as this Committee does, the first offence and other mitigating circumstances on behalf of the Defendant Nigel McGrath there must be disqualification imposed and given the multiple offending, despite the heavy financial burden that results it believes it must be for a period of three years on each breach to be served concurrently. The Committee does not see that a fine is needed in addition but there will be an order for costs, which will be addressed separately. To enable the defendant to make necessary arrangements the term of the disqualification will come into effect on 1^st October 2004 and expire on 30^th September 2007.

In respect of the Defendant Philip Burrows for the breach of Rule 1004 the same considerations regarding the need for a period of disqualification are applicable given the degree of negligence, which has been established. Even taking into account his good record and first offence, on his own admission, his role in feeding and lack of care in preventing the positive which occurred calls for a penalty to reflect a breach on a higher scale in this instance. A shorter period of disqualification will be appropriate without imposing any fine in addition. That period of disqualification will be for six months from 1^st October 2004 to expire on 31^st March 2005. There will be, in addition, an order for costs.

In respect of the Defendant James Keast for the breach of Rule 1004 this Committee believes that disqualification is not appropriate given the evidence of his limited involvement and it is unfortunate for him that he is caught by the strict liability provisions of the Rules. The Committee agrees with submissions by his Counsel, Mr. Rapley that it was purely by chance that he came to be with the horse under instructions from his employer. No evidence was given to show any involvement with feeding on the day nor at any time and although technically the breach has been established the Committee is entitled to exercise its discretion in regard to the quantum of penalty. The breach is nevertheless one for which a penalty should be imposed but in this case it should be treated as at the lower end of the scale and accordingly a fine of $2,000 is imposed to reflect this. There will also be an order for costs.

No submissions on the quantum of costs have been received from any party but the Committee is aware of the level of costs awarded by previous Judicial Committees from perusal of their decisions. It is clear that any award cannot be expected to recover all of the costs involved. It can only be treated as a contribution but needs to recognize that this has been a hearing over two days with consequent travel and accommodation expenses as well as substantial witness expenses.

On the other hand the financial circumstances of the defendants as put to the Committee are also a factor. Therefore it is ordered that the sum of $800.00 on each breach be awarded to Harness Racing New Zealand and the sum of $400.00 on each breach be awarded to The Judicial Control Authority. Accordingly the Defendant Nigel McGrath is ordered to pay $2,400.00 to Harness Racing New Zealand and $1,200.00 to The Judicial Control Authority. The Defendants Philip Burrows and James Keast are each ordered to pay $800.00 to Harness Racing New Zealand and $400.00 to The Judicial Control Authority.

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hearing_type: Old Hearing

Rules: 1001.1.q, 1004.2

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