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Non Raceday Inquiry RIU v A Browne - Decision dated 1 September 2017 - Chair, Mr M McKechnie

Created on 04 September 2017

BEFORE A NON-RACEDAY JUDICIAL COMMITTEE

IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

BETWEEN THE RACING INTEGRITY UNIT (RIU)

INFORMANT

AND ANN BROWNE

Class A Licensed Trainer

RESPONDENT

Non Raceday Judicial Committee: Mr Murray McKechnie Chairman & Mr Richard Seabrook

Present: Mr Andrew Cruickshank Racing Investigator

Mr Alan Galbraith QC counsel Mrs Ann Browne

Mrs Ann Browne

Mrs Sheryl McGlade support person for Mrs Browne

Mr Liddon Wood

Mr Warwick Robinson Registrar

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

DATED THIS 1st DAY OF SEPTEMBER 2017

NATURE OF THE CHARGE

1. Mrs Ann Browne is a licenced trainer under the New Zealand Rules of Thoroughbred Racing. She is charged that on 5th of June 2017 at Ellerslie being the trainer of the horse RAISAFUASHO that this horse took part in Race 4 when the horse was found to have in its metabolism a prohibited substance named Sotalol and that there was in consequence a breach of Rule 804(2) of the NZ Rules of Thoroughbred Racing. RAISAFUASHO was first past the post in Race 4 on 5th June 2017.

1.2 Rule 807(7) provides that a person who commits an offence against Rule 804(2) shall be liable to:

a) Be disqualified for a period not exceeding five (5) years; and/or

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

c) A fine not exceeding $25,000.

1.3 Mrs Browne requested that there be a testing of the second or “B” sample. That sample was sent to Australia and also tested positive.

1.4 The race in which RAISAFUASHO was engaged was the KS Browne Hurdle. That race is named in memory of Mrs Browne’s late husband Ken Browne. He was an iconic figure in New Zealand Thoroughbred Racing particularly with reference to jumping horses. Over many years he and Mrs Browne trained very successfully from their Cambridge base. Mr Browne was a highly successful amateur rider. Both Mr & Mrs Browne have a special and admired place in New Zealand racing.

1.5 Upon receipt of the second sample Mrs Browne indicated a plea of guilty. Her counsel is Mr Alan Galbraith QC a senior counsel vastly experienced in racing matters. For the RIU Mr Cruickshank has acknowledged that Mrs Browne has been entirely cooperative throughout.

1.6 A summary of facts has been put before the Committee. This has been settled between Mr Cruickshank and Mr Galbraith and there are no matters at issue in respect of that summary. The summary is attached to this decision and is to be read as part of the decision of the Committee.

2. SUBMISSIONS FOR MRS BROWNE

2.1 Mr Galbraith put before the Committee a signed written statement from Mrs Browne. The Committee had earlier been furnished with a copy of the statement which has been signed today. This makes plain Mrs Browne’s concern and upset at the events outlined above. It also tells the Committee something of her long and detailed involvement in jumps racing much of which is known to the Committee from its own knowledge of the thoroughbred racing industry.

2.2 Mr Galbraith also put before the Committee a statement of Mr Liddon Wood. Mr Wood is an employee of Mrs Browne. He has worked for the Browne stable since 1999. He is now aged 75 years. Both Mr Wood and Mrs Browne have been present throughout the hearing and have answered questions directed to them from the Committee.

2.3 The prohibited substance which was found in the tests taken from RAISAFUASHO was Sotalol. That is a medication which treats a heart condition in humans. Mr Wood’s statement to the Committee explained that it was prescribed for him some two (2) years ago and further that Mrs Browne knew that he was receiving this medication. Mr Wood’s statement went on to explain that he does not take the medication to the stables of Mrs Browne and that this happened on only one occasion. That was inadvertent and in answer to the Committee’s question he explained that it was some months before the horse raced at Ellerslie on 5th June 2017.

2.4 Mr Galbraith put detailed penalty submissions before the Committee. He emphasised that the circumstances in which Sotalol came to be within the horse’s system were unknown. Mr Galbraith described the facts of the matter as “being unusual”. He emphasised that it was unlikely that Sotalol would have improved the horse’s performance and that there was no intention to affect the horse’s performance. There is no explanation as to how Sotalol entered the horse other than possibly by reference to the prescribed medication that was being taken by Mr Wood.

2.5 As to penalty Mr Galbraith emphasised that there was no wrongdoing by Mrs Browne. There was in his submission no need to impose a penalty that might deter others because in essence there was no deliberate misconduct on the part of Mrs Browne. Mr Galbraith in paragraph 8 of his submissions referred to correspondence which he had directed to the RIU and quoted a passage from that correspondence to this effect:

“I cannot conceive what submission could sensibly be made as to what Ann might have done to prevent the occurrence”.

2.6 Mr Galbraith urged the Committee to discharge Mrs Browne without conviction or alternatively to impose a conviction and discharge. There were some detailed discussions between the Committee and Mr Galbraith as to whether a discharge without conviction was possible under the Rules of Racing. Mr Galbraith drew attention to Rule 920(1). This would appear to give a Judicial Committee a wide discretion as to how it might deal with informations that are brought before it. Further Mr Galbraith drew attention to Rule 1007. That is the rule which sets out the powers of an Appeals Tribunal on appeal. That too is framed in a way which suggests that an Appeals Tribunal has a wide discretion in determining the appropriate penalty.

2.7 There is no express provision in the Rules of Racing for a discharge without conviction. That contrasts with the position under Section 106 of the Sentencing Act 2002 which governs the position with relation to criminal law. In determining whether a discharge without conviction is to be given under Section 106 of the Sentencing Act 2002 a Court is required to look at Section 107 which is to this effect.

Guidance for discharge without conviction:

“The Court must not discharge an offender without conviction unless the Court is satisfied that the direct or indirect consequences of a conviction would be out all proportion to the gravity of the offence”

It was Mr Galbraith’s submission that to enter a conviction against Mrs Browne and/or not to discharge her would lead to her being characterised as a person who had broken the Rules of Racing and would reflect unfavourably on her integrity and her character.

2.8 The Committee has carefully considered whether a discharge without conviction might be appropriate. There are numerous authorities of the High Court. One of the most recent and certainly most widely publicised is the decision of Justice Collins in NZ Police v Filipo CRI-2016-485-000080, High Court Wellington, 27 October 2016. Mr Filipo was a well-known rugby player who had been in a violent incident in Wellington and as a result brought before the District Court on criminal charges. He was granted a discharge without conviction and that was appealed to the High Court by the New Zealand Police. Justice Collins overturned the decision in the District Court and set aside the discharge without conviction.

2.9 The charge to which Mrs Browne has pleaded guilty is what has sometimes been characterised as offence of “absolute liability”. Offences of “absolute liability” do not require that there be proof that the person concerned has acted deliberately in breach of the rules. The reasoning behind the imposition of offences of “absolute liability” is to ensure that however a breach may occur the person or persons responsible are held to account. As to the level of culpability that in the opinion of this Committee can be properly reflected in the penalty that might be imposed.

2.10 The Committee has been referred to a large number of cases where there have been breaches of the prohibited substance rule. The Committee has looked carefully at all of those and indeed the members of the Committee have been involved in some of those cases of more recent years. It is clear that in general terms the penalties imposed for breaches of the rule on race-day have been more significant than the penalties imposed for breaches of the rule at trials meetings.

3. SUBMISSIONS FOR THE RIU

3.1 Mr Cruickshank has filed detailed submissions. These acknowledge Mrs Browne’s cooperation throughout. They further acknowledge her entirely unblemished record. Save for the reference to the possibility of Sotalol resulting from Mr Wood’s medication the submissions record that there is no clear explanation as to how that substance came to enter the subject horse RAISAFUASHO.

3.2 The penalty submissions for the RIU draw attention to a number of the mitigating facts already mentioned and emphasise that here there are no aggravating circumstances. It is contended on behalf of the RIU that there should be a monetary penalty imposed in the sum of $6,000. That figure is in line with a number of the penalties imposed for offences involving breaches of the Prohibited Substance Rule on race-day.

4. DISCUSSION

4.1 The Committee accepts that there is no clear explanation as to how Sotalol came to enter RAISAFUASHO. The Committee further accepts that the stable of Mrs Browne has an impeccable record and that there are no suspicious circumstances of any kind.

4.2 The Committee does not believe that a discharge without conviction is appropriate where there is a breach of the rule which is, as described earlier, a rule of “absolute liability”. To agree to a discharge without conviction in respect of such a rule would create a circumstance where persons could come before Raceday Committees and demonstrate want of fault and thereby not have a conviction entered. That would, in the Committee’s view, defeat the purpose of a rule which imposes “absolute liability”.

4.3 What the Committee does accept is that what has occurred here is unusual and that this should reflect in the penalty that is to be imposed. In the first place there is no alternative but to require the disqualification of the horse under Rule 804(8). That will perforce involve forfeiture of the prize money. The winning stake for the subject race was $30,000. It can be seen from that figure that it was a hurdles race of some significance.

4.4 The second sample was tested in Australia at a cost of $1,500. The RIU seek the reimbursement of that sum but no other costs. That is a generous position for the RIU to have adopted.

4.5 Taking account of all of the circumstances set out above the Committee takes the view that there must be a conviction entered – the word “conviction” itself has an overtone of wrongdoing beyond what is perhaps appropriate here. It would be more appropriate for the Committee to say that the charge has been found to be proved and the Committee must proceed accordingly. As to penalty under Rule 804(7) a monetary penalty which properly reflects the unique circumstances is appropriate. The Committee considers that a fine of $4,000 is at the correct level and that will be the fine imposed. Further there will be an order that the sum of $1,500 be paid to the RIU in respect of the testing of the “B” sample. Mrs Browne will make a contribution towards the costs of the Judicial Control Authority in the sum of $500.

4.6 The Committee believes that the circumstances here are almost certainly unique. These circumstances are unlikely to be repeated. This decision does not set any meaningful precedent for breaches of the prohibited substance rule on race-days.

4.7 There will be an order under Rule 804(8) disqualifying RAISAFUASHO from Race 4 at Ellerslie on 5th June 2017 and in consequence the placings in that race will adjusted so that the horses that finished after RAISAFUASHO will all move up from the positions that were declared on 5th June 2017.

4.8 Mrs Browne, the Committee wants to emphasise that none of what has brought you here today reflects on your integrity. That integrity has never been in question and it remains intact and we want to emphasise that not only to the people who are in this room but also to people who read this decision. This decision will in due course be published on the JCA website and we mean to make clear that the circumstances of this case do not reflect badly upon you in any way whatsoever. The reputation that you and your late husband have established remains intact and is unaltered.

Dated this 1st day of September 2017

Murray McKechnie

Chairman

(Signed pursuant to Rule 920(4)

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BEFORE THE JUDICIAL COMMITTEE
AT WAIKATO
IN THE MATTER of the New Zealand Rules of Thoroughbred Racing

BETWEEN

RACING INTEGRITY UNIT
Andy Cruickshank
Investigator
Informant

AND

Ann BROWNE
Licensed Trainer NZTR
Respondent

 

SUMMARY OF FACTS


The respondent Mrs Ann Browne has a Class C Owner Trainer licence under the Rules of the New Zealand Thoroughbred Racing.

On the 5th June 2017 “Raisafuasho” was correctly entered and presented to race by Mrs Browne Race 4 the K S Browne Hurdle at the Auckland Racing Club meeting at Ellerslie.

“Raisafuasho” is a 10-year-old brown gelding (Johar – Bedelia) owned by Mrs Browne and the Est late K S Browne MBE and trained by Mrs Browne.

“Raisafuasho” underwent a random Post Race urine swab. Mrs Browne does not contest the swabbing process.

“Raisafuasho” finished first of the six horse field winning a stake of $30,000.

All swab samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the Rules of New Zealand Thoroughbred Racing.

On the 21st June 2017 the Official Racing Analyst reported in writing that the sample from “Raisafuasho” had tested positive to Sotalol.

Sotalol is a non-selective beta-adrenergic blocker which modifies the heart rate to control anti-arrhythmic activity commonly used in man to control arrhythmia by prolonging the atrial and ventricular refractory periods.

Sotalol has recorded human side effects on other body systems however the predominant effect is the control of rhythm and output of the heart. The NZ Ministry of Health classifies Sotalol as a prescription medicine.

Sotalol is a Prohibited Substance within the meaning of the Rules and its presence in a race day sample is, prima facie, a breach of the Rules.

Mrs Browne was spoken to at her home on Friday 30th June 2017. Mrs Browne advised that “Raisafuasho” had not been unwell and had not been seen by a vet in at least 6 months. She was shocked to learn of the positive result and unable to assist in determining how the Sotalol had got into the horses’ system.

Staff of Mrs Browne’s were also spoken to. A member of her staff who has worked for her for since 1999 advised Investigators that he has been taking Sotalol for the last two years for cardiac arrhythmia.

He stated that he takes the medication in the morning before work but does not take the medication to Mrs Browne’s property.

On the 9th July Mrs Browne advised Investigators that she would like to have the B Sample tested by the New South Wales Racing Laboratory.

The B Sample was then forwarded to the Australian Racing Forensic Laboratory in New South Wales.

A written report was issued by the Australian Racing Forensic Laboratory on the 25th July 2017 which confirmed that Sotalol was present in the B sample provided by “Raisafuasho”.

Mrs Browne was advised of the result on 31 July 2017. She was still unable to explain how the Sotalol had come into “Raisafuasho” system but did not believe that it could have come from her staff member.

Mrs Browne has been involved in the Thoroughbred Racing Industry virtually her entire adult life and only trains a few horses which she owns herself. She has no prior serious breaches of NZTR Rules.

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