Tauranga RC 16 November 2013 (Adjourned – heard 11 December 2013)

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hearing_racingtype: thoroughbred-racing

startdate: 16/11/2013

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hearing_title: Tauranga RC 16 November 2013 (Adjourned - heard 11 December 2013)

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Adjourned Hearing - RIU v Mr D Walker 11 December 2013

BEFORE THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

HELD AT ELLERSLIE RACECOURSE

IN THE MATTER of Information No A2786

BETWEEN Mr B OLIVER, Assistant Investigator for the Racing Integrity Unit

Informant

AND MR D WALKER – Licensed Class C Trainer

Defendant

Date of Hearing: 11 December 2013

Venue: Ellerslie Racecourse

Judicial Committee: Mr A Dooley, Chairman - Mr A Godsalve, Committee Member

Present: Mr B Oliver, Mr D Walker, Mr A Coles (Registrar)

Date of Decision: 16 December 2013

The Charge:

The Informant, Mr B Oliver, Racing Investigator, alleged THAT about 3.05pm on Saturday 16th November 2013, at a meeting of the Tauranga Racing Club you did commit a breach of Rule 804(5) of the New Zealand Rules of Racing in that you did administer by injection a substance with a syringe into the mouth of the horse POSTMANS DAUGHTER prior to racing in Race 7 on the program and that such administration was not under the direction of a Stipendiary Steward or Racecourse Investigator and that again you are liable to the penalties or penalty which may be imposed on you pursuant to Rule 804(6) of the said Rules.

Rule 804(5) provides: “A person, except for a Veterinarian who is an official, shall not, during a day of racing, administer by injection, nasal gastric tube, gastric tube, ventilator or nebulizer to a horse entered in a Race on that day of racing or any substance whatsoever, unless such administration occurred after the horse has raced or under the direction of a Stipendiary Steward or Investigator. For the purposes of this sub-Rule the day of racing is deemed to commence at 12.01 am and to conclude after the last Race.”

Rule 804(6) provides:

“A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) of this Rule shall be liable to:

(a) be disqualified for a period not exceeding five years: and /or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $25,000”

Mr Walker acknowledged he had received a copy of the charge and the relevant Rules. He told the Committee that he understood them and admitted the breach of the said Rules. Mr Walker accepted that the summary of facts presented were a correct account of the incident.

Evidence for the Informant:

(1) Mr D Walker is a Licensed Trainer holding a Class C Owner Trainers License. He is the Trainer of the thoroughbred mare POSTMANS DAUGHTER which he bred and owns.

(2) On Saturday the 16th of November 2013, POSTMANS DAUGHTER was correctly entered for Race 7, The Stella Artois Tauranga Stakes, a Group 3 race over 1600m for a stake of $70,000.00.

(3) At 3.05pm, Mr Walker arrived at the Tauranga course driving his own float. With him was his strapper Mr S Udy.

(4) Immediately the float stopped in the car park, the ramp at the rear of the float was dropped down and both Mr Walker and Mr Udy entered the rear of the float.

(5) An Investigator for the Racing Integrity Unit looking into the float found Mr Walker with a syringe in his hand. The only horse on the float was POSTMANS DAUGHTER, Mr Walker was asked to hand over the syringe which he did.

(6) He was advised that he had committed a breach of the Rules by administering any substance to his horse on a raceday. He said “I only gave it 30 mil of Wind Aid because she’s had a wind operation I’ve done it every day since she had the operation”.

(7) Mr Walker was advised that POSTMANS DAUGHTER would be scratched from the race as the Investigator and Stewards were unable to establish what was in the substance administered to the horse.

(8) The Investigator seized a bucket containing various horse ailment remedies and as well as the syringe, they were forwarded to the New Zealand Racing Laboratory for examination.

(9) Mr Walker was further interviewed at the Racecourse and said that he did not know that what he had done was against the Rules. He said that administering the product Wind Aid to his horse was a case of looking after his horse. He said that he administered it to the horse because he looks after his horses and he did it for the welfare of the horse. He was read Rule 804(5) and said “Fair enough. I did it and that’s all about it. I want to get it dealt with”. The procedural process was explained to him and an information was laid. The JCA committee adjourned the matter at the request of the RIU to enable time to establish what the substance administered to the horse was.

(10) As you will be aware, the term “injection’ was determined by the Appeal Tribunal in HRNZ v C to be the dictionary meaning of the word and not the usual medical or veterinary meaning which is a syringe with a needle attached. The dictionary meaning would include any device which can be used to force any product into the mouth of a horse.

(11) NZ Racing Laboratories have established that there were no prohibited substances in any of the Exhibits and that the residue left in the syringe used by Mr Walker confirmed that Wind Aid was the product administered to POSTMANS DAUGHTER.

(12) Wind Aid is designed to offer temporary relief in horses for bronchial congestion, minor throat irritations, allergies and wind problems.

(13) Throughout this enquiry Mr Walker has been co-operative. He has been an owner/trainer since 1999 and usually only has one horse in work. He lives in rural Papakura. He has never been charged with any breach of the Rules before.

In response to questions Mr Oliver advised the Committee that upon looking into the rear of the truck he saw Mr Walker holding a horse’s head with one hand and holding a syringe in the other hand. Mr Walker handed the syringe over to Mr Oliver when instructed to do so.

Mr Oliver stated he did not see the syringe in POSTMANS DAUGHTER’s mouth but confirmed that the syringe was empty. Mr Oliver further added initially Mr Walker had told him he had given POSTMANS DAUGHTER a substance on the racecourse. However, upon being re interviewed on the 4th of December Mr Walker told him he had given POSTMANS DAUGHTER a substance called “Wind Aid” at his property before travelling to the races.

Evidence for the Defendant:

Mr Walker informed the Committee that he is a hobby trainer with only the one horse. He advised us POSTMANS DAUGHTER is paddock trained which leads to her being exposed to dust and pollen. In November 2012, POSTMANS DAUGHTER required surgery on her throat to help her breathing. At this point Mr Walker stated he started giving POSTMANS DAUGHTER a daily dose of a non-prohibited substance called “Wind Aid”. He informed the Committee that he administered this product to her on a daily basis to alleviate symptoms of respiratory aggravation.

Mr Walker informed us that on the 16th of November POSTMANS DAUGHTER was engaged to race at Tauranga. Mr Walker said prior to leaving his farm he acknowledged that he had administered “Wind Aid” to the horse. He told us when he put POSTMANS DAUGHTER on the truck he inadvertently left the syringe on the window sill of the truck.

Mr Walker stated when he arrived at the racecourse he and his assistant Mr Udy were unloading POSTMANS DAUGHTER when Mr Oliver approached them. Mr Walker said at the time he was holding her head with one hand and had the syringe in the other hand. He denied having administered “Wind Aid” at that time.

In response to a question from the Committee, Mr Walker acknowledged that it was an oversight on his part to administer any product to a horse on a raceday. By Mr Walker’s own admission he was guilty of not reading the Rules, and he believed he was acting in the horse’s best interest.

Decision:

As Mr Walker admitted the breach we find the charge proved.

Submissions for Penalty by Mr Oliver:

1. Mr. Walker is 66 years of age and has held an Owner/Trainers License since 1999.

2. He has never been charged with a breach of any Rule.

3. Mr. Walker claimed that he did not know of the Rule and that he only administered the product in the interests of the welfare of the horse.

4. The intention of Rule 804(5) is to maintain the integrity of the racing industry and it was promulgated to ensure that no horse should have administered to it any substance, by the methods set out in the Rule.

5. The RIU submits that while Mr Walker was unaware of the Rule, this is not a defence of his actions. He has been training horses for almost 14 years.

6. Regarding penalty, the RIU submits that this matter can best be dealt with by way of fine and to this end we submit the following for comparative analysis. These are all penalties for like offences. It should be noted that in October 2009 old Rule 10004(2)(c) was replaced with a new equivalent Rule 804(5);

March 2013 Mr L Fined $750.00

April 2010 Mr S Fined $750.00

April 2010 Ms R Fined $750.00

May 2009 Mr N Fined $750.00

Copies of these decisions had not been made available to Mr Walker so the Committee offered to read them to him, he declined this offer. The Committee believed it was important to do so and read aloud the relevant parts of each decision to Mr Walker.

7. In summary, the circumstances are similar to those listed above and the RIU submits that a commensurate penalty should be imposed.

8. No costs are sought by the RIU.

Submissions on penalty by Mr Walker:

Mr Walker submitted that in his view no penalty should be imposed. He added that he was “gutted” because he felt he could be seen to be corrupt by the public.

Reasons for Penalty:

The Committee carefully considered all the evidence and submissions presented. The mitigating factors are Mr Walker's admission of the breach, his clear record under this Rule, and his co–operation with the RIU.

The aggravating facts in accordance with Rule 920 (2) which this Committee must have regard for are as follows: (a) the status of the race in which it was a Group 3 event, (b) the stake payable in respect of the race, this breach occurred in a $70,000 race (c) any consequential effects upon any person or horse as a result of the breach of the Rule, the Club and TAB turnover of the race was effected as POSTMANS DAUGHTER was a favored runner in the race (d) the need to maintain integrity and public confidence in racing, which is paramount and the perception in this case has been detrimental to the image of racing.

Mr Walker has an obligation as a Licensed Trainer to understand and abide by NZTR Rules of Racing.

We note the analysis of the sample was reported as negative for any prohibited substance.

However, as an experienced trainer Mr Walker should not have only known the Rule but he should have been aware of the other cases referred to by Mr Oliver.

The Committee referred to the JCA database for similar penalties under this Rule, they all incurred fines of $750.

The Committee could not draw any inferences from the evidence submitted as to where and when the substance was administered to POSTMANS DAUGHTER. We have to accept the evidence shows only that it was not administered at the racecourse and our penalty must reflect that.

The Committee is mindful of the need to treat all people in the Racing Industry fairly and to be consistent with any penalty that it imposes.

Therefore taking into account all of the above and placing emphasis on the aggravating factors we consider an appropriate penalty to be a $1,000 fine.

Penalty:

On the question of costs, the RIU and JCA sought no costs as this hearing was held prior to a race meeting.

Accordingly, Mr Walker is fined the sum of $1,000.

A Dooley          A Godsalve
Chairman        Committee Member

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