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Non Raceday Inquiry RIU v B R Negus - Reserved Penalty Decision dated 20 March 2018 - Chair, Ms N Moffatt

Created on 22 March 2018

BEFORE A JUDICIAL COMMITTEE

APPOINTED BY THE JUDICIAL CONTROL AUTHORITY

Information No. A7154

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT

Simon Andrew Irving

Racecourse Investigator

Informant

AND Bruce Robert Negus

Trainer

Respondent

Judicial Committee: Ms N Moffatt (Chair), Mr T Castles (Committee Member)

Venue: Manawatu Raceway

Present: Mr Simon Irving, the Informant

Mr B Negus, the Respondent

Mrs C Negus, wife of the Respondent

Date of Hearing: 15th March 2018

Date of Decision: 20th March 2018

RESERVED PENALTY DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No A7154 alleges that:

On the 26th January 2018 at Addington, Bruce Robert NEGUS, registered trainer and person for the time being in charge of the horse, presented ‘Living Legend’ to the NZ Metropolitan Trotting Club’s meeting for the purpose of engaging in and did engage in Race 1, failing to present the said horse free of the prohibited substance namely Ketoprofen, in breach of the New Zealand Harness Racing Rule 1004(1A) & (3) and 1004(D) and subject to the penalties pursuant to Rules 1004(7) & (8).

The Rules

[2] Rule 1004 of the Rules of Harness Racing provides as follows:

(1A)

A horse shall be presented for a race free of prohibited substances.

(3)

When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.

(D)

Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it any prohibited substance shall be disqualified from that race.

[3] The penalty Rule is Rule 1004(7) which provides as follows:

Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) a fine not exceeding $20,000.00; and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

1004(8)

Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.

[4] Mr Irving presented a letter signed by Mr Mike Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 1108(2) authorising the filing of the information.

[5] The information was served on Mr Negus on 27th February 2018 and he signed the information form indicating he admitted the breach of the rule.

[6] Mr Negus was present at the hearing on March 15th 2018 along with his wife Mrs Colleen Negus. The charge and relevant rules were read to him, after which he admitted the breach. Accordingly the charge was found proved.

Summary of Facts

[7] Mr Irving presented the following Summary of Facts:

1. The Respondent Bruce Robert NEGUS is a licensed public trainer under the Rules of New Zealand Harness Racing (HRNZ). He is 64 years old and has been a harness trainer and driver since 1983.

2. LIVING LEGEND is a 7-year-old gelding trained by Mr NEGUS and owned by MJ Stratford. The horse has raced 88 times for six wins and 17 placings earning stakes of $59,889.

3. LIVING LEGEND was correctly entered and presented to race by Mr NEGUS at the New Zealand Metropolitan Trotting Club’s meeting at Addington Raceway on 26 January 2018. The horse was driven in Race 1 - the Bishopdale & Bush Inns Tabs & Tavern Harewood Mobile Pace - by Ms Cheree WIGG, winning the race and a stake of $5,300.

4. LIVING LEGEND was post-race swabbed by swabbing official Mr G Johnson who obtained a urine sample from the gelding at 5.46pm. The urine sample (#134315) was taken in the presence of Ms Wigg who does not contest the swabbing process.

5. On the 7th February the New Zealand Racing Laboratory Service (NZRLS) reported Ketoprofen was detected in the sample. The control sample was clear.

6. Ketoprofen is a potent pain reliever, fever reducer and anti-inflammatory medication. It is often prescribed for soft tissue injury, bone and joint problems or laminitis. Ketoprofen is also prescribed to reduce or control fevers due to viral or bacterial infections. It has a recommended withholding time of 4.2 – 4.5 days.

7. On the 13th February Mr NEGUS was spoken to at his property in Burnham and informed of the positive swab. He could offer no explanation for the presence of Ketoprofen and stated that he had never treated the gelding with Ketoprofen.

8. Mr NEGUS also stated that his vet had prescribed a 100ml bottle of Kelaprofen (active ingredient Ketoprofen 100mg/mL) on the 22nd January for another horse ‘NUCLEAR WAY’ who was ill. The bottle was located in Mr NEGUS medicine cabinet in his stables and was approximately half full.

9. A feed supplement given to ‘LIVING LEGEND’ taken from the premises was analysed by NZRLS returning a negative result to Ketoprofen.

10. Mr NEGUS also had a second horse ‘HIGHLAND REIGN’ swabbed on the same evening as ‘LIVING LEGEND’ which returned a clear result.

11. Mr NEGUS has been a licensed person for approximately 35 years. He has no previous serious racing offence charges.

[8] Mr Negus said that while he accepted the summary of facts, as presented by Mr Irving, he wanted to clarify one point. Whilst not concerned about the validity of the swabbing process he did want it made clear that Ms Cheree Wigg did not actually witness the sample bottles being put into the plastic bag.

[9] Mr Negus explained that he has struggled to come up with an explanation as to why his horse LIVING LEGEND returned a positive reading. He told the Committee that he was treating another horse at the time but this horse was kept at a different property 15 minutes away. The Kelaprofen was drawn up into a syringe at a dose of 10mls, and the syringe was taken to the other horse while the bottle of Kelaprofen remained at the stable.

Informant’s Penalty Submissions

[10] Mr Irving presented the following penalty submissions:

1. The Respondent, 64 year old Bruce Robert Negus is a Licensed Public Trainer under the New Zealand Rules of Harness Racing.

2. He has held a trainers licence since 1983 and currently trains from his property in Burnham near Christchurch.

3. HRNZ records detail that Mr Negus has trained (some in partnership) almost 6000 starters during his career with 444 winners.

4. Mr Negus has admitted a breach of Rule 1004(1A) (3) & (4) for presenting his horse ‘Living Legend’ to the races on 26.01.2018 with the prohibited substance Ketoprofen in its system.

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

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

PENALTY SUBMISSIONS

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

8. Mr Negus is adamant that he, nor any employee at his stable, did not administer Ketoprofen to ‘Living Legend’. He has no idea how the positive could have occurred.

9. Mr Negus had been supplied a 100ml bottle of Kelaprofen by a vet from the Canterbury Equine Clinic on the 22nd January (four days prior to the positive) for treatment of another horse ‘Nuclear Way’ who had a suspected liver issue.

10. The bottle was located in the Respondents unlocked medicine cabinet in his stables, approximately two thirds full.

11. Ketoprofen has a recommended withholding time of 4.2 days as per the EVA guideline.

12. The Respondent very seldom bets and did not wager on his horse that day.

13. An analysis of TAB betting records revealed no unusual bets associated with the horse or the race. ‘Living Legend’ won the race by a neck and was 3/3 in the betting, paying $6.80 and $2.30 on the tote.

14. The Respondent trains another mare ‘Highland Reign’ which was also swabbed at the same race meeting, returning a negative post-race swab.

15. 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.

PREVIOUS CASES

RIU v C & A Edmonds – 31 March 2016 2x Harness Racing Ketoprofen positives – fined $9,000.

RIU v J M Whittaker – 17 August 2015 Harness Racing Caffeine positive – fined $1,000, plus costs $1,800.

RIU v P M Williamson – 10 December 2012 Harness Racing Procaine positive – fined $3,500, plus costs $350 to JCA. The source of the positive was not identified.

16. Under Rule 1004(D) ‘Living Legend’ is required to be disqualified from the race.

Respondent’s Submissions

[11] Mr Negus presented the following written submissions:

I am charged with, and have pleaded guilty to presenting the horse LIVING LEGEND with ketoprofen in its system. I have no idea how it got there. I have never had a hint of trouble with prohibited substances until now. My late father instilled in his children the belief you are buried with your reputation. I'm asking for a suspension. I recognize the need for someone to be held accountable. I submit my record entitles my request for real consideration.

[12] Mr Negus addressed the Committee personally, expanding further on his request for a suspension in lieu of a monetary penalty. Mr Negus was concerned about the perception that he had given one of his horses a drug, and the effect this would have on his elderly mother who was suffering from ill health.

He also provided two (2) written character references; one from a former stable hand and the other from Mr Negus’ veterinarian, Dr D A Senior. Both referees have known Mr Negus for a long period of time and both emphasised his honesty and integrity.

[13] Mr Negus called both Mr Michael House and Mr Jim Curtin as character referees. Mr House gave a heartfelt account of all that Mr Negus had achieved throughout his career and said he was shocked when he heard one of his horses had returned a positive drug test. He said Mr Negus was a great trainer who had contributed enormously to the Harness Racing Industry over the years and it was an honour to know him.

[14] Mr Curtin said he had known Mr Negus for many years and he was always honest and reliable.

[15] The Committee asked Mr Irving for the RIU’s position on Mr Negus’ submission for a suspension instead of a fine. He said that suspensions were normally applied to breaches by drivers and were not appropriate for trainers. This was because a trainer could transfer their horses to another licensed person’s name but still effectively train the horses themselves.

Reasons for Decision

[16] Mr Negus admitted the charge of presenting his horse LIVING LEGEND to race at the NZ Metropolitan Trotting Club’s meeting on 26th January 2018 not free of prohibited substances, namely Ketoprofen.

[17] The summary of facts was not disputed by the Respondent.

[18] The JCA guidelines have a starting point of $8000 for a first offence of presenting a horse with a drug in its system. We considered Mr Negus’ request for a suspension but were of the opinion that we would be setting a precedent as all recent penalties have resulted in fines being imposed. The Committee did not find any compelling reasons to impose a suspension in lieu of a monetary penalty.

[19] Mr Negus said he does not know how the horse LIVING LEGEND came to return a positive to Ketoprofen, nor did the RIU present any possible explanation. The drug “Kelaprofen” was properly prescribed by a registered veterinarian and was kept in a medicine cabinet in Mr Negus’ stables. The fact that the medicine cabinet was unlocked was not considered an aggravating factor in this case.

[20] Mr Negus has an unblemished record after 35 years of training horses having never had any of his horses return a positive drug test. Character references have all emphasised the integrity of the Respondent.

[21] The Committee has also been guided by recent penalties, in particular that of RIU v C & A Edmonds. This case however was in relation to two positive tests to Ketoprofen whereas Mr Negus has only one. The Judicial Committee in RIU v C&A Edmonds uplifted the JCA penalty guide starting point to $12,000 and applied a 25% discount for mitigating factors, arriving at a $9000 fine.

[22] We have taken into account Mr Negus’ admission of the breach, his full cooperation throughout the investigation, the outstanding character references (both written and delivered in person during the hearing) and his excellent record over many years. For these mitigating factors we have allowed a significant discount.

Penalty

[23] Accordingly Mr Negus is fined the sum of $5,500.

Disqualification of the Horse

[24] Under Rule 1004(D) we order the disqualification of LIVING LEGEND from Race 1, the Bishopdale & Bush Inns Tabs & Tavern Harewood Mobile Pace.

Amended placings are:

1st 10 WESTAR SAM
2nd 6 AVEROSS BRACHOLE
3rd 9 ROMANITE
4th 8 EJA PATRON
5th 11 GOING TO CALIFORNIA

Costs

[25] The RIU did not seek any award of costs and accordingly, no order is made.

[26] The Hearing took place on a race day therefore no order of costs is made in favour of the Judicial Control Authority.

N Moffatt (Chair)
 

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