NZ Metro TC 9 September 2011 – R5 – Chair, Mr R McKenzi
ID: JCA14610
Meet Title:
NZ Metro TC - 9 September 2011
Meet Chair:
RMcKenzie
Meet Committee Member 1:
SChing
Race Date:
2011/09/09
Race Number:
R5
Decision:
The charge was found to be proved.
Penalty:
Mr Kennett’s Open Horseman’s Licence is suspended for a period of 9 months as from the conclusion of racing on 9 September 2011. The Committee notes that Mr Kennett is the declared driver for a runner at the meeting of Timaru Harness Racing Club’s meeting on 11 September. For the avoidance of any doubt, Mr Kennett will not be permitted to carry out that engagement. In addition, Mr Kennett is fined the sum of $400.
Charge:
Refusing to supply urine sample.
Facts:
Information No. 69072 was filed by Racing Investigator, Mr B A Kitto, against Licensed Open Driver, Mr C L E Kennett, alleging a breach of Rule 512 (2) in that Mr Kennett “being an Open Horseman under the NZ Rules of Harness Racing . . . having been required under those Rules . . . to supply a sample of urine at a time, 6.40pm at the Driver Testing Room, refused to comply with such a request.”
Mr Kennett was present at the hearing of the information. He had refused to sign the Statement by the Defendant on the information form indicating whether he admitted or did not admit the breach.
The relevant Rules were read by Mr Kitto and Mr Kennett confirmed that he understood those Rules and the nature of the charges.
Mr Kennett was offered the opportunity by the Committee to have the hearing of the charge adjourned but elected not to do so. Mr Kennett, unhesitatingly, indicated that he wished the hearing of the charge to proceed. He neither admitted nor denied the breach. The hearing proceeded on the basis that the charge was denied.
Rule 512 provides as follows:
(2) Every horseman commits a breach of these Rules who, having been required under these Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, urine, saliva or sweat (or more than one thereof), at a time and place nominated by the Stipendiary Steward or Racecourse Inspector or Judicial Committee refuses or fails:
(a) to comply with such a request; or
(b) to provide an adequate or appropriate sample for testing.
(4) If a horseman refuses or fails to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) when required by a Stipendiary Steward or Racecourse Inspector or Judicial Committee then that horseman’s licence shall be automatically suspended until the Judicial Committee issues a final decision in relation to any information filed against that horseman in relation to that sample or samples.
Submissions for Decision:
Mr Kitto said that twenty drivers at the race meeting were selected for random drug testing and were required to provide urine samples. Mr Kennett was one of those selected. Mr Kennett was served with the prescribed form requiring him to attend at the Driver Testing Room at 6.40pm.
Mr Kitto produced the form which had been signed by Mr Kennett. He pointed out paragraph 9 (in bold type) of the Official Notice on the rear of the form which provided:
A horseman from whom a sample has been requested and who, for whatever reason, has failed to supply a sample, shall not leave the confines of the racecourse or other place of testing without the prior permission of the Racecourse Inspector and/or Stipendiary Steward.
Mr Kitto pointed out that Mr Kennett had initialled in the margin beside that paragraph.
Mr Kennett duly went to the Driver Testing Room, Mr Kitto said. Mr Kitto was called to that Room but, when he arrived there, Mr Kennett was not there. Mr Kennett was in Mr Kitto’s office. Mr Kennett told Mr Kitto that he was refusing to supply a urine sample and said that he would prefer to surrender his licence rather than provide a urine sample. Mr Kitto said that he then explained to Mr Kennett that he was required to provide a urine sample to which Mr Kennett replied that he had his own rights and was refusing to do so.
Mr Kennett stated that everything Mr Kitto had said was correct. He said that he had “got a shock” at the procedure involved – to use his own words, “that a woman would be there looking over me”. Mr Kennett accepted that that person was a registered nurse. Mr Kennett said that he would have been happy to supply a blood sample and submitted that the Rule provided for the provision of a blood sample as an alternative to a urine sample. He told the Committee that the nurse had asked that he turn around to provide the sample but she told him that she was required to oversee the procedure. He said that a “shy person” would not want a woman present when he “went to the toilet”.
At that point, the hearing room was required by the Stipendiary Stewards, as a race had just concluded. The Committee informed the parties that the hearing was being adjourned until the venue became available again. Mr Kennett left the room saying that he did not intend to return and that he was “quitting”. He was advised by the Committee to remain.
When the hearing subsequently resumed, Mr Kitto reported that he had been unable to find Mr Kennett and understood that he had left the racecourse.
Mr Kitto said that he had no further submissions to make. Mr Kennett had elected not to attend the conclusion of the hearing, but he had made the Committee aware of the basis of his defence to the charge sufficient for it to make a finding on the charge.
The Committee retired to consider its decision.
Reasons for Decision:
The Committee was satisfied, to well beyond the required standard, that Mr Kitto had proved the charge of refusing to supply a urine sample. Mr Kitto had produced a copy of the Notice that was served on Mr Kennett, which clearly set out Mr Kennett’s obligations. The “Official Notice” on the reverse of the form contained the following relevant provisions:
4. The horseman shall obey all directions and requests by the Racecourse Inspector and/or Stipendiary Steward relating to the supplying of a sample.
5. The horseman shall accompany the aforementioned or a registered medical practitioner or “authorised person” to the designated drug testing station when requested and there provide such sample as requested.
7. The horseman shall obey all instructions from the registered medical practitioner or “authorised person”.
Paragraph 9 of the Official Notice is set out above.
The Committee was satisfied that the required procedure had been strictly complied with. Mr Kennett was required to provide a sample (in this case a urine sample) as requested by Mr Kitto. The Committee was informed by Mr Kitto that it is a condition of Mr Kennett’s horseman’s licence that he submit to the drug testing procedure if required. Mr Kennett agreed, but said that it was not specified that a urine sample could be required. The Rules are quite specific and the option of the type of sampling to be used is the Racecourse Inspector’s (Racing Investigator’s) and not the horseman’s. The Committee is satisfied that the registered nurse attending was an “authorised person”.
Mr Kennett’s defence to the charge on the ground that he was willing to provide a blood sample but not a urine sample was disingenuous and unconvincing. He did not have the choice of procedure and was required to supply whatever type of sample was requested by Mr Kitto – in this case, a urine sample. He plainly refused to do so and, thereby, was in breach of Rule 512 (2).
Submissions for Penalty:
Mr Kitto informed the Committee that Mr Kennett had not previously breached the Rule.
The Stipendiary Stewards were able to furnish details of Mr Kennett’s driving record. He has had 743 lifetime drives, but had only three drives in the 2009/2010 season and tonight he had only his second drive in the current season.
Mr Kitto referred to a case in the galloping code in which a trackwork rider had received a disqualification for 8 months for failing to supply a urine sample. The Committee was aware of another case in which a rider had been disqualified for 6 months.
Mr Kitto submitted that this was a blatant breach of the Rule.
Mr Kitto said that he did not seek a disqualification in this case. He submitted that a suspension was appropriate and, in this regard, he submitted a term of 12 months. He further submitted that a fine of $400 should be imposed in addition to a suspension.
Reasons for Penalty:
The Committee agreed with Mr Kitto’s submission that this was a blatant breach of the drug testing Rules.
The Official Notice issued by Harness Racing New Zealand states that:
“It is the policy of the New Zealand Harness Racing Executive Committee to ensure that harness racing is ‘drug free’. This policy applies to both horses and horsemen. There has long been in place drug testing of horses. To uphold the stated policy which is designated to maintain the integrity of harness racing and to provide safety measures for horsemen and horses, the Executive Committee have put in place rules and procedures that will allow for the ‘drug testing’ of horsemen.”
The wisdom of that policy is self-evident and the requirements of the drug-testing regime are not negotiable as far as horsemen are concerned. It is obviously a serious matter for a horseman to refuse to comply with the drug-testing requirements and the consequences of a refusal must reflect that.
In this case, Mr Kennett put forward the explanation that, in effect, he was shy to give a urine sample in the presence of a female nurse. That explanation is petty and, quite simply, not acceptable. The seriousness of Mr Kennett’s refusal, which he frankly admitted, cannot be overstated.
Mr Kennett also holds a trainer’s licence issued by Harness Racing New Zealand. The effect of a disqualification on him would be quite dire. The Committee takes the view that the breach arises from his position as a licensed horseman and that, therefore, any penalty should impact on the latter licence only. So, the Committee did not consider a disqualification in this case.
However, a term of suspension is certainly called for and, in the Committee’s view, an additional monetary penalty is also appropriate. The term of suspension imposed takes into account the fact that Mr Kennett drives only very infrequently.
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: 99c434b158928bf2d89953e9ba403883
informantnumber: 69072
horsename:
hearing_racingtype:
startdate: no date provided
newcharge: Refused to provide urine sample
plea: denied
penaltyrequired: 1
decisiondate: 12/09/2011
hearing_title: NZ Metro TC 9 September 2011 - R5 - Chair, Mr R McKenzi
charge:
Refusing to supply urine sample.
facts:
Information No. 69072 was filed by Racing Investigator, Mr B A Kitto, against Licensed Open Driver, Mr C L E Kennett, alleging a breach of Rule 512 (2) in that Mr Kennett “being an Open Horseman under the NZ Rules of Harness Racing . . . having been required under those Rules . . . to supply a sample of urine at a time, 6.40pm at the Driver Testing Room, refused to comply with such a request.”
Mr Kennett was present at the hearing of the information. He had refused to sign the Statement by the Defendant on the information form indicating whether he admitted or did not admit the breach.
The relevant Rules were read by Mr Kitto and Mr Kennett confirmed that he understood those Rules and the nature of the charges.
Mr Kennett was offered the opportunity by the Committee to have the hearing of the charge adjourned but elected not to do so. Mr Kennett, unhesitatingly, indicated that he wished the hearing of the charge to proceed. He neither admitted nor denied the breach. The hearing proceeded on the basis that the charge was denied.
Rule 512 provides as follows:
(2) Every horseman commits a breach of these Rules who, having been required under these Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, urine, saliva or sweat (or more than one thereof), at a time and place nominated by the Stipendiary Steward or Racecourse Inspector or Judicial Committee refuses or fails:
(a) to comply with such a request; or
(b) to provide an adequate or appropriate sample for testing.
(4) If a horseman refuses or fails to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) when required by a Stipendiary Steward or Racecourse Inspector or Judicial Committee then that horseman’s licence shall be automatically suspended until the Judicial Committee issues a final decision in relation to any information filed against that horseman in relation to that sample or samples.
appealdecision:
isappeal:
submissionsfordecision:
Mr Kitto said that twenty drivers at the race meeting were selected for random drug testing and were required to provide urine samples. Mr Kennett was one of those selected. Mr Kennett was served with the prescribed form requiring him to attend at the Driver Testing Room at 6.40pm.
Mr Kitto produced the form which had been signed by Mr Kennett. He pointed out paragraph 9 (in bold type) of the Official Notice on the rear of the form which provided:
A horseman from whom a sample has been requested and who, for whatever reason, has failed to supply a sample, shall not leave the confines of the racecourse or other place of testing without the prior permission of the Racecourse Inspector and/or Stipendiary Steward.
Mr Kitto pointed out that Mr Kennett had initialled in the margin beside that paragraph.
Mr Kennett duly went to the Driver Testing Room, Mr Kitto said. Mr Kitto was called to that Room but, when he arrived there, Mr Kennett was not there. Mr Kennett was in Mr Kitto’s office. Mr Kennett told Mr Kitto that he was refusing to supply a urine sample and said that he would prefer to surrender his licence rather than provide a urine sample. Mr Kitto said that he then explained to Mr Kennett that he was required to provide a urine sample to which Mr Kennett replied that he had his own rights and was refusing to do so.
Mr Kennett stated that everything Mr Kitto had said was correct. He said that he had “got a shock” at the procedure involved – to use his own words, “that a woman would be there looking over me”. Mr Kennett accepted that that person was a registered nurse. Mr Kennett said that he would have been happy to supply a blood sample and submitted that the Rule provided for the provision of a blood sample as an alternative to a urine sample. He told the Committee that the nurse had asked that he turn around to provide the sample but she told him that she was required to oversee the procedure. He said that a “shy person” would not want a woman present when he “went to the toilet”.
At that point, the hearing room was required by the Stipendiary Stewards, as a race had just concluded. The Committee informed the parties that the hearing was being adjourned until the venue became available again. Mr Kennett left the room saying that he did not intend to return and that he was “quitting”. He was advised by the Committee to remain.
When the hearing subsequently resumed, Mr Kitto reported that he had been unable to find Mr Kennett and understood that he had left the racecourse.
Mr Kitto said that he had no further submissions to make. Mr Kennett had elected not to attend the conclusion of the hearing, but he had made the Committee aware of the basis of his defence to the charge sufficient for it to make a finding on the charge.
The Committee retired to consider its decision.
reasonsfordecision:
The Committee was satisfied, to well beyond the required standard, that Mr Kitto had proved the charge of refusing to supply a urine sample. Mr Kitto had produced a copy of the Notice that was served on Mr Kennett, which clearly set out Mr Kennett’s obligations. The “Official Notice” on the reverse of the form contained the following relevant provisions:
4. The horseman shall obey all directions and requests by the Racecourse Inspector and/or Stipendiary Steward relating to the supplying of a sample.
5. The horseman shall accompany the aforementioned or a registered medical practitioner or “authorised person” to the designated drug testing station when requested and there provide such sample as requested.
7. The horseman shall obey all instructions from the registered medical practitioner or “authorised person”.
Paragraph 9 of the Official Notice is set out above.
The Committee was satisfied that the required procedure had been strictly complied with. Mr Kennett was required to provide a sample (in this case a urine sample) as requested by Mr Kitto. The Committee was informed by Mr Kitto that it is a condition of Mr Kennett’s horseman’s licence that he submit to the drug testing procedure if required. Mr Kennett agreed, but said that it was not specified that a urine sample could be required. The Rules are quite specific and the option of the type of sampling to be used is the Racecourse Inspector’s (Racing Investigator’s) and not the horseman’s. The Committee is satisfied that the registered nurse attending was an “authorised person”.
Mr Kennett’s defence to the charge on the ground that he was willing to provide a blood sample but not a urine sample was disingenuous and unconvincing. He did not have the choice of procedure and was required to supply whatever type of sample was requested by Mr Kitto – in this case, a urine sample. He plainly refused to do so and, thereby, was in breach of Rule 512 (2).
Decision:
The charge was found to be proved.
sumissionsforpenalty:
Mr Kitto informed the Committee that Mr Kennett had not previously breached the Rule.
The Stipendiary Stewards were able to furnish details of Mr Kennett’s driving record. He has had 743 lifetime drives, but had only three drives in the 2009/2010 season and tonight he had only his second drive in the current season.
Mr Kitto referred to a case in the galloping code in which a trackwork rider had received a disqualification for 8 months for failing to supply a urine sample. The Committee was aware of another case in which a rider had been disqualified for 6 months.
Mr Kitto submitted that this was a blatant breach of the Rule.
Mr Kitto said that he did not seek a disqualification in this case. He submitted that a suspension was appropriate and, in this regard, he submitted a term of 12 months. He further submitted that a fine of $400 should be imposed in addition to a suspension.
reasonsforpenalty:
The Committee agreed with Mr Kitto’s submission that this was a blatant breach of the drug testing Rules.
The Official Notice issued by Harness Racing New Zealand states that:
“It is the policy of the New Zealand Harness Racing Executive Committee to ensure that harness racing is ‘drug free’. This policy applies to both horses and horsemen. There has long been in place drug testing of horses. To uphold the stated policy which is designated to maintain the integrity of harness racing and to provide safety measures for horsemen and horses, the Executive Committee have put in place rules and procedures that will allow for the ‘drug testing’ of horsemen.”
The wisdom of that policy is self-evident and the requirements of the drug-testing regime are not negotiable as far as horsemen are concerned. It is obviously a serious matter for a horseman to refuse to comply with the drug-testing requirements and the consequences of a refusal must reflect that.
In this case, Mr Kennett put forward the explanation that, in effect, he was shy to give a urine sample in the presence of a female nurse. That explanation is petty and, quite simply, not acceptable. The seriousness of Mr Kennett’s refusal, which he frankly admitted, cannot be overstated.
Mr Kennett also holds a trainer’s licence issued by Harness Racing New Zealand. The effect of a disqualification on him would be quite dire. The Committee takes the view that the breach arises from his position as a licensed horseman and that, therefore, any penalty should impact on the latter licence only. So, the Committee did not consider a disqualification in this case.
However, a term of suspension is certainly called for and, in the Committee’s view, an additional monetary penalty is also appropriate. The term of suspension imposed takes into account the fact that Mr Kennett drives only very infrequently.
penalty:
Mr Kennett’s Open Horseman’s Licence is suspended for a period of 9 months as from the conclusion of racing on 9 September 2011. The Committee notes that Mr Kennett is the declared driver for a runner at the meeting of Timaru Harness Racing Club’s meeting on 11 September. For the avoidance of any doubt, Mr Kennett will not be permitted to carry out that engagement. In addition, Mr Kennett is fined the sum of $400.
hearing_type: Hearing
Rules: 512 (2)& (4)
Informant: B A Kitto, Racecourse Investigator
JockeysandTrainer: C L E Kennett, Licensed Open Horseman
Otherperson:
PersonPresent:
Respondent:
StipendSteward:
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race_title: R5
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meetdate: 09/09/2011
meet_title: NZ Metro TC - 9 September 2011
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meet_chair: RMcKenzie
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name: NZ Metro TC