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Non Raceday Inquiry RIU v A I Bambry - Reserved Written Decision dated 4 December 2017 - Chair, Mr T Utikere

Created on 08 December 2017

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Racing Rules

BETWEEN RACING INTEGRITY UNIT

Informant

AND ANTHONY IAN BAMBRY

Respondent

Judicial Committee: Mr T Utikere (Chairman)

Mrs N Moffatt (Member)

Parties: Mr S Irving (for the RIU)

Mr J Tannahill (Counsel for the Respondent)

Mr A Bambry (as the Respondent)

Date of Hearing: 25 November 2017

Venue: Eulogy Lounge, Awapuni Racecourse

RESERVED WRITTEN DECISION DATED 4 DECEMBER 2017

FACTS

[1] Licensed Class A Trainer Anthony Bambry has been charged with a breach of Rule 804(2) of the New Zealand Rules of Thoroughbred Racing.

[2] Rule 804(2) states: “When a horse which has been brought to a Racecourse or similar racing facility for the purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules”.

[3] Information A4194 specifically alleges that: “On the 23rd June 2017 at Otaki Racecourse, being the registered trainer and person in charge of the horse, presented ‘VEUVE CLICQUOT’ to the Otaki-Maori Racing Club’s meeting for the purpose of engaging in and did engage in Race 1 - the NZB Insurance Pearl Series 2yo - failed to present the said horse free of the prohibited substance namely Cobalt, in breach of the NZTR Rule 804(2) and therefore subject to penalty pursuant to Rules 804(7) and 804(8)”.

[4] The relevant Penalty provisions are contained in Rules 804(7) and 804(8). They state:

“Rule 804(7): A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (6) 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.

Rule 804(8): Any horse connected with a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be, in addition to any other penalty which may be imposed, disqualified from any Race or trial to which the Third Appendix hereto applies and/or be liable to a period of disqualification not exceeding five years.”

[5] The Committee had previously issued a Minute dated 31 October that set this matter down for a hearing on 25 November at Awapuni Racecourse. In that Minute, the Committee identified that it was in receipt of the Notice of Appointment, the Charge Rule and Penalty Provisions and an Authority to Charge Letter from the General Manager of the Racing Integrity Unit, Mr M Godber.

[6] Counsel for the Respondent, Mr Tannahill confirmed to the hearing that Mr Bambry, who was present, admitted the breach.

INFORMANT’S SUBMISSIONS

[7] For the RIU, Mr Irving presented the following Summary of Facts to the hearing:

“The respondent Anthony Ian BAMBRY is 60 years old and is a licensed Class A trainer under the Rules of Thoroughbred Racing New Zealand (NZTR).

Mr BAMBRY owns and trains the 2yo filly ‘Veuve Clicquot’ which won Race 1 - the ‘NZB Insurance Pearl Series 2yo - at the Otaki Maori Racing Club’s meeting at Otaki Racecourse on the 23rd June 2017. ‘Veuve Clicquot’ earned gross stakes money of $6250 and a Pearl Series Bonus of $8000.

The horse was post-race swabbed (#119002) and on the 12th July the Eurofins ELS Laboratory, Wellington issued an Analytical Report detailing the sample positive to Cobalt at a level of 172ug/L. The sample was then sent to the NATA accredited Racing Analytical Services in Melbourne who on the 01st August issued a Certificate of Analysis detailing the sample positive to Cobalt at a level of 173ug/L.

On the 01st August 2016 the threshold for cobalt was reduced from a mass concentration of 0.20 milligrams (200ug) per litre of urine to 0.10 milligrams (100ug) per litre.

In 2014 approximately 250 randomly selected historical, frozen urine samples were sent for cobalt analysis. These covered the North and South Islands, Harness and Thoroughbred Racing and a wide range of trainers in both codes. These test results revealed levels of under 5 to a maximum of 60 with an average of 10.

Since the cobalt-testing regime was under taken by the RIU on the 01st August 2015 approximately 3100 tests have been conducted. The results of these tests show that 99.5% of these samples contained 100 ug/L or less of cobalt, with over 95% of the results containing less than 25 ug/L. Cobalt is an essential trace element required for life and a horse’s minimum daily requirement is approximately 0.5mg per day.

Under NZTR Prohibited Substance Regulations for the Rules of Racing, substances capable at any time acting directly or indirectly on the blood system are prohibited substances. Cobalt is capable of acting upon the blood system and under the amended rules, when present in urine above 100 ug/L is a prohibited substance in accordance with the rules.

On the 19th July Mr BAMBRY was interviewed at his property near Palmerston North and detailed a number of feed supplements and substances containing Cobalt that were given to Veuve Clicquot prior to race day. He did not contest the swabbing process.

Mr BAMBRY stated that in the days leading up to the race he gave Veuve Clicquot feed and supplements, IV injections and drenches of products containing Cobalt. These included 2x MegaBLUD sachets in a saline drench 26hrs prior to the race and feed containing 3x MegaBLUD sachets at 2.45pm and 6.00pm the day before the race, with some of that feed remaining in the filly’s bowl on race morning when it was added to at 5.30am. MegaBLUD is a powdered mineral supplement that comes in 28.4gm sachets, labelled as containing 25mg of Cobalt (as cobaltous carbonate).

A number of exhibits were taken from the property for Cobalt testing. A Certificate of Analysis provided by the AsureQuality Laboratory confirmed there were no anomalies in any of the products tested.

On that day Veuve Clicquot was tested at the Mr BAMBRY’S stables, returning a level of 19.4 ug/L. On the 31st July Veuve Clicquot was tested post-race at Awapuni, returning a level of 7.6 ug/L. 1. RIU records detail that Mr Bambry trained horses have been post-race Cobalt tested on a total of six occasions returning the following ug/L levels: 18, 23, 173, 41, 8.8, 7.6.

Mr BAMBRY has trained racehorses since 1988 and his NZTR record details he has had approximately 900 starters for 73 wins. He has no previous charges for breaching the Prohibited Substance Rule or any other NZTR Rules.”

[8] In response to a question from the Committee, Mr Irving advised that the new threshold levels for Cobalt had been reduced from 200ug/L to 100ug/L, with effect from 1 August 2016, and that this was after research had been conducted as to the effect of Cobalt on horses. He also identified that this threshold change was gazetted in the NZTR Magazine and was also communicated to licence holders via other avenues.

RESPONDENT’S SUBMISSIONS

[9] Mr Tannahill had no comments to make on the Summary of Facts, other than to indicate that it was a fair summation of events.

DECISION

[10] As the charge was admitted, the Committee deem the charge proved.

PENALTY SUBMISSIONS

The Informant’s Submissions on Penalty

[11] Mr Irving presented the following submissions to the hearing:

1. The Respondent, 60 year old Anthony Ian BAMBRY is a Licensed Class ‘A’ Trainer under the Rules of Thoroughbred Racing New Zealand.

2. He has held a trainers licence since 1988 and is currently training 12 horses from his property near Palmerston North.

3. The Respondent has admitted a breach of Rule 804(2).

4. The circumstances are detailed in the attached Summary of Facts which have been agreed.

5. The penalties which may be imposed are detailed in the attached Charge Rule and Penalty Provisions Document.

6. The RIU believes that an appropriate penalty for this breach is a $10,000 fine.

7. Cobalt is an essential micronutrient in the form of Vitamin B12 (cobalamin). It is a substance included under Part A (1.1.7) of the Prohibited Substance Regulations of the NZ Rules of Racing - capable at any time acting directly or indirectly on the blood system - and under the amended rules, when present in urine above 100 ug/L is a prohibited substance in accordance with the rules.

8. Although there is no requirement to establish the cause of administration for a breach of the Prohibited Substance Rule, the RIU investigation concluded that the positive swab probably resulted from the use of the Cobalt containing supplements used by the Respondent and that it was most likely that the 3x MegaBLUD sachets added to the filly’s feed approximately 19 hours prior to the race contributed significantly to the recorded level.

9. The Respondent trains another filly, 3yo ‘Blondlign’ which returned a negative post-race swab (Cobalt 8.8ug/L) from a win two weeks later on the 8th July. In explanation the Respondent stated that the only difference in the feed and supplement regime was the addition of more MegaBLUD and iron supplements due to ‘Veuve Clicquot being a 2yo and a rangy, ‘ribby’ younger horse.

10. As per the JCA Penalty Guidelines effective from the 01st May 2015 the starting point for a Thoroughbred or Harness Racing first ‘Presentation’ offence is $8000.

11. There have been no other previous singular Cobalt positives in NZ racing.

PREVIOUS CASES

12. RIU v O’SULLIVAN & SCOTT (22.03.2016) – 3x Cobalt positives at levels of 309ug/L, 541 and 640 (when the threshold was 200ug/L). The Committee adopted a starting point of $23,000 per offence with a 25% reduction for mitigating factors. This was a training partnership with it being a second offence for one party. Given the high recorded levels of Cobalt, horse welfare was also a major issue and the degree of negligence was described by the Committee as "high", resulting in a total fine imposed of $50,000.

13. RIU v DALGETY (16.05.2017) – 5x Cobalt positives at levels of 245ug/L; 252; 300; 584; and 600+ (when the threshold was 200ug/L). The committee adopted a starting point of $14,000 per offence. This was his 3rd offence. Horse welfare was also in issue due to the high levels recorded and the degree of negligence was described by the Committee as the "high end of mid-range." Total fine imposed of $32,000.

14. RIU v W & M COLES (23.05.2016) – Caffeine positive in a feed supplement from an unknown source. Described as "low-mid level negligence" due to the supplement being well past its ‘best before’ date. First offence, resulting in a $6000 fine.

15. RIU v A BROWN (01.09.2017) – Sotalol (heart medication) positive possibly caused through human contact contamination. Nil negligence determined and first offence, $4000 fine.

16. Under Rule 804.8 ‘Veuve Clicquot’ is required to be disqualified from the race.

COSTS

17. The RIU are seeking no costs.

MITIGATING FACTORS

18. It is acknowledged that the Respondent has been fully cooperative throughout the investigation and pleaded guilty to the breach at the first opportunity.

19. On the 01st August 2016 the threshold for cobalt was reduced from a mass concentration of 0.20 milligrams (200ug) per litre of urine to 0.10 milligrams (100ug) per litre. Obviously had this result been prior to that date then it would be under the threshold.

20. The Respondent owns ‘Veuve Clicquot’ with his wife. Their loss of stake earnings from the disqualification totals $14,250.

21. The Respondent has the occasional bet and believes he placed $10ew on his horse that day via the on course tote. An analysis of TAB betting records revealed no unusual bets associated with the horse or the race. ‘Veuve Clicquot’ won the race by one length and paid $9.90 and $2.20 on the tote.

22. The Respondent has been involved in thoroughbred industry for 40 years and has an exemplary record throughout his 30 years of training.

AGGRAVATING FACTORS

23. It is submitted that Mr Bambry is culpable of ‘mid-level’ carelessness, failing to take proper and reasonable care by giving ‘Veuve Clicquot’ a number of Cobalt containing supplements up until the afternoon and evening prior to race-day with the possibility that the horse may have consumed feed containing cobalt on the day of the race.

24. Each MegaBLUD 28.4gm sachet contains the following written ‘Directions’ on the reverse side of the packet: "Feed 1 sachet daily, for 10 days, then each week, feed 1 sachet daily for 3 days prior to strenuous activity, or as recommended by your veterinarian. For best results mix contents with horses feed." On one supplement website (earlysgarden.com) the ‘Directions for use’ are detailed as "Feed 1 pouch (28.4 g) per horse per day mixed in the daily grain ration."

25. The Respondent detailed that he included 2x MegaBLUD sachets in a saline drench administered to ‘Veuve Clicquot’ 26hrs prior to the race and 3x MegaBLUD sachets incorporated in the filly’s feed the day prior (with half the feed given at 2.45pm and 6.00pm), this being contradictory to the recommended daily dosage.

26. RIU consulting vet Andrew Grierson offered the opinion that "A Cobalt level of over 100ug/L could be achieved with a horse consuming the best part of the 3 sachets of MegaBLUD on the day of racing. A study done in Australia using 21mg Cobalt showed levels at 120 and 110ug/L two to four hours after administration but in another two hours those levels quickly dropped well below 100. So somewhere between 25 and 75mg on the day close to the time of racing would get there. Feeding ‘normal’ levels of Cobalt to a horse will not get the levels up, so why give 3 sachets in feed close to racing?"

CONCLUSION

27. Given the recommended starting point of $8000, the aggravating factor of mid-level negligence as an uplift, the mitigating factors as listed and the overall circumstances considered in this case, I believe a $10,000 fine is an appropriate penalty.

[12] Mr Irving also reiterated that Mr Bambry and his daughter had been the most helpful and co-operative individuals that he had been involved with whilst in his current role as a Racing Investigator.

[13] In response to questions from the Committee, Mr Irving confirmed the position of the RIU in that this was a ‘presentation’ offence that most likely occurred as a result of two MegaBLUD sachets in a saline drench being used 26 hours prior, then an additional three sachets of MegaBLUD being put in VEUVE CLICQUOT’s feed on the day prior to racing. He did not believe this incident related to issues of horse welfare as the reading, whilst above the threshold, was not at a level that would present welfare issues for consideration.

The Respondent’s Submissions on Penalty

[14] Mr Tannahill advised that Mr Irving and the RIU had been very fair in their Penalty Submissions. He agreed with position of the RIU, except for the level of the fine in the particular circumstances of the case. He believed a $10,000 fine was too high and submitted that a fine similar to the level imposed in RIU v Browne was in order, after having regard to the mitigating factors in Mr Bambry’s favour.

[15] He described the Respondent as currently aged 61 years, who had held a Trainer’s Licence for more than 30 years. Mr Bambry had no previous breaches of the Rules of Racing whatsoever, and had admitted the breach at his earliest opportunity. He and his daughter were also fully co-operative with the RIU during the investigative process.

[16] Mr Tannahill also believed that the reading of 173ug/L was not an excessive reading, as prior to 1 August 2016 the threshold level for Cobalt would have been higher at 200ug/L.

[17] Further, he submitted that the horse must be disqualified, and that Mr Bambry and his wife would lose approximately $14,250 in stake monies, which would be a severe penalty in itself.

[18] In the particular circumstances of this case, he referred us to the opinion provided by the RIU from Andrew Grierson regarding MegaBLUD. He also referred to the Walkinshaw and Quinton (in the Australian jurisdiction) cases, where after investigation the stipendiary stewards had found that the feed was contaminated which led to an increased Cobalt reading.

[19] Mr Bambry had been devastated when he had been advised of the positive and at the time could not understand what he had done wrong. Mr Tannahill advised that if the Respondent had any idea that giving the three sachets would result in a positive, then he would not have done so.

[20] Mr Tannahill did not believe the negligence was mid-range as if the reading had been over 200ug/L then that would, in his view, be considered as an offence within the mid-range.

[21] Mr Bambry also confirmed that he knew MegaBLUD contained Cobalt, and was very aware of this. He stated that he was under the impression that a breach of the Cobalt threshold was only achieved via injection rather than ingestion. With 2yos, Mr Bambry said that he often gave three sachets of MegaBLUD the night before, and on this occasion the horse had left over feed in the bowl and was still eating on race morning. He advised that the horse had raced at 11.28am on raceday.

[22] Mr Bambry acknowledged in appreciation that the RIU had been informative and helpful during, what he considered to be, a stressful time.

REASONS FOR PENALTY

[23] In reserving its decision, the Committee has taken the time to consider all of the submissions that have been placed before it. We accept that Cobalt is a Prohibited Substance under the Rules of Racing, and that VEUVE CLICQUOT returned a positive to that substance at a level of 173ug/L after being post-race swabbed at the Otaki-Maori Meeting on 23 June 2017.

[24] The RIU have submitted that the breach before us is at the mid-range. Mr Tannahill does not concur with that submission, suggesting that the Cobalt levels detected were at a level that did not label it as a mid-range level of offending.

[25] The Committee has found the professional opinion of vet Andrew Grierson of assistance. He has specifically opined that:

"A Cobalt level of over 100ug/L could be achieved with a horse consuming the best part of the 3 sachets of MegaBLUD on the day of racing. A study done in Australia using 21mg Cobalt showed levels at 120 and 110ug/L two to four hours after administration but in another two hours those levels quickly dropped well below 100. So somewhere between 25 and 75mg on the day close to the time of racing would get there. Feeding ‘normal’ levels of Cobalt to a horse will not get the levels up, so why give 3 sachets in feed close to racing?" (At para 26 of the Written RIU Penalty Submissions).

[26] When considering this against the specific circumstances of this case, it is clear that Mr Bambry has been negligent in giving VEUVE CLICQUOT four additional sachets of MegaBLUD within the window of administration than he should have; the recommended dosage was one sachet, whereas Mr Bambry gave five sachets via two different methods. In this context, it was a deliberate administration that exceeded the recommended dosage. For a trainer with Mr Bambry’s level of experience over many years, we consider this to be an aggravating factor.

[27] To compound the Respondent’s negligence, he had left food, which he knew to contain MegaBLUD in the filly’s feed bowl on the day of the races, and neglected to empty it out to avoid further ingestion on the day. It is clear, from his own concurrence, that it was Mr Bambry who was solely responsible for administering the Cobalt to VEUVE CLICQUOT, albeit in his view under a misunderstanding of the effects, not his staff or any other person.

[28] The Committee finds it surprising that a trainer of Mr Bambry’s experience would simply leave feed known to contain MegaBLUD in a feed bowl on raceday. Especially in a situation where he has confirmed that he knew MegaBLUD contained Cobalt, yet he had exceeded the recommended dose.

[29] Mr Bambry had administered the Cobalt-containing MegaBLUD in two different ways; firstly two sachets via a saline drench 26 hours prior to the race, and then by way of feed containing three sachets, spread over feeds at 2.45pm and 6.00pm the day before the race.

[30] His justification for doing so, was on the misunderstanding that a breach of the Cobalt threshold would only occur if the cobalt was administered via injection rather than ingestion.

[31] There are no other cases in New Zealand that relate to a singular instance of a Cobalt positive. The RIU have referred to the previous cases of RIU v O’Sullivan and Scott and RIU v Dalgety. Both of those relate to multiple Cobalt positives. Mr Bambry has maintained the view that he believed that the 100ug/L threshold could only be breached via administration by injection; not ingestion.

[32] We take the view that it was naive of Mr Bambry to believe that a positive to Cobalt could not be achieved by way of ingestion. Again, this aligns with the fact that he has been involved in the industry over many years and the topical nature of Cobalt as a Prohibited Substance over recent times. Of further interest is the fact that the two previous Cobalt cases mentioned above in para [31], were both as a result of ingestion; not injection. Given the discrete number of Cobalt cases, and the extremely high profile and concerns expressed about Cobalt positives across Australasia, it should have been evident to Mr Bambry that giving four times the amount of Cobalt (via MegaBLUD sachets) was likely to return a positive result.

[33] Much has been said during the hearing, by both parties, that if the former threshold of 200ug/L had applied at the time of this breach, then Mr Bambry would not be facing the charge that he is currently facing. We apply no weight whatsoever to that consideration. As we understand it, the threshold was lowered after research into the effects of Cobalt on horse welfare, and as such we have considered the circumstances of this charge on the basis that the current threshold has been breached.

[34] There has been no suggestion of external contamination of feed, as was the case in Wilkinson and Quinton; so this sits quite separately from those cases. Mr Tannahill has suggested that RIU v Browne is more relevant when determining a comparative penalty. We disagree. The Browne decision did not relate to Cobalt or a substance of similar concern. The Committee in that case also determined that no negligence was attributable to Mrs Browne; which does not equate with Mr Bambry’s situation. Quite simply, there are limited, if any, parallels between Browne and the current case.

[35] When considering the previous Cobalt cases in New Zealand alongside this one, there are slight differences that a Committee may consider in mitigation. These include the fact that only one horse was involved, on one discrete occasion. The Committee also accepts that horse welfare issues are not an aggravating consideration on this occasion, due to the Cobalt reading level that was returned.

[36] The financial consequence to Mr Bambry as a result of a fine has also been identified by Mr Tannahill. He specifically refers to the fact that Mr Bambry will suffer a financial “penalty” as a result of the horse’s $6,250 stake monies and $8,000 Pearl Series Bonus having to be returned.

[37] We place little weight on this submission as the connections of VEUVE CLICQUOT gained those financial benefits as a result of not racing in accordance with the Rules of Racing; by being presented to race with the Prohibited Substance Cobalt in its system. In this sense, this is not a “penalty” as Mr Tannahill submits, but rather what is proper process as a result of the requirement to disqualify VEUVE CLICQUOT from the race.

[38] The most recent Cobalt Decision (Dalgety) identified that the RIU v O’Sullivan and Scott case “should have put trainers on notice”, with regard to Cobalt. Given the extremely high profile of Cobalt, it must be expected that trainers who are aware that they are administering products that contain Cobalt are required to be extra vigilant. As the circumstances surrounding this breach have been presented to this Committee, we form the view that Mr Bambry has failed in this regard.

[39] Given Mr Bambry’s knowledge that the MegaBLUD sachets contained Cobalt, it is a very real possibility that his intent was to get as much of the product as possible into VEUVE CLICQUOT’s system prior to the Pearl Series Bonus race.

[40] The JCA Penalty Guidelines suggest a starting point of a $8,000 fine for a first ‘Presentation’ offence. Due to the nature of the Prohibited Substance being Cobalt, and its high public profile, we consider an uplift to the starting point as appropriate.

[41] In Dalgety, the negligence was identified as at the high-end of the mid-range and a starting point that reflected 70% of the maximum financial penalty under the Rules was adopted. At that time, the maximum financial penalty applicable to that breach in the Harness Racing code was a $20,000 fine.

[42] When we reflect on the specific context of this breach, Mr Bambry has fallen below the required standard as a licensed trainer by presenting a horse with the Prohibited Substance Cobalt. He was aware that the drench and food he administered to VEUVE CLICQUOT contained Cobalt, and sought to administer it to his horse in an intensive manner under the misunderstanding that administration via ingestion would not result in a breach of the threshold levels.

[43] This shows very poor judgement, and as such we have determined that Mr Bambry’s negligence falls within the mid-range. We consider a starting point that reflects 60% of the maximum financial penalty as appropriate. As the maximum financial penalty applicable to this breach is a $25,000 fine, we adopt a starting point of a $15,000 fine.

[44] In mitigation, we have considered the Respondent’s early admission of the breach and we have also applied the fact that he has no previous breaches of the Rules after more than 30 years as a trainer. While this could be perceived as a significant mitigating factor, this must also be counterbalanced by the fact that as a trainer of many years, he should have an understanding of the substances and products he uses, and the guidelines for such use.

[45] For these collective factors, we are prepared to afford Mr Bambry a reduction from the starting point of $4,000. This represents a more than 25% discount. The end result will be a fine of $11,000. Given the specific circumstances of this breach, we consider the penalty to be fair, reasonable and appropriate to reflect the seriousness with which Cobalt breaches will be viewed within the racing industry.

[46] There is a requirement for VEUVE CLIQUOT to be disqualified under the provision of Rule 804(8). This was accepted by the Respondent at the hearing, and accordingly an Order for “Any financial benefits paid as a result of VEUVE CLICQUOT’s placing in that race are to be refunded for redistribution in accordance with the amended placings” (Order of Judicial Committee dated 26 November 2017) has already been made.

PENALTY

[47] Mr Bambry is fined $11,000.

COSTS

[48] The RIU have indicated that no costs are sought. As this hearing took place on a raceday, no further order for JCA costs will be made.

Signed at Palmerston North this 4th day of December 2017.

Mr Tangi Utikere

Chairman

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