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Non Raceday Inquiry RIU v B Wallace and G Cooksley - Decision dated 8 March 2021 - Chair, Mr A Harper

Created on 09 March 2021

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL

AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred

Racing Inc Rules of Racing

OSCAR WESTERLUND, Racing Investigator

for the Racing Integrity Unit (RIU)

Informant

BRUCE WALLACE and GRANT COOKSLEY

Licensed Class A Trainers

Respondents

Information No: A8490

Judicial Committee: Mr A Harper, Chairman

Mrs N Moffatt, Member

Hearing Date: Heard on the papers

DECISION OF JUDICIAL COMMITTEE DATED 8 MARCH 2021

Background

1. On Saturday 31 October 2020, the Counties Racing Club held a meeting at Pukekohe Racecourse.

2. Race 2 was the Past Presidents of Counties Racing Club 1,200. The race was won by Jason Belltree, a 3 year old colt trained by the Respondents.

3. Following the race Jason Belltree was routinely swabbed resulting in confirmation that the horse was found to have present in its metabolism a prohibited substance namely Caffeine.

4. As a result the Respondents have been charged under Rule 804(2) of the Rules of New Zealand Thoroughbred Racing (“the Rules”).

5. The Respondents have admitted that charge and therefore become subject to the penalty or penalties which may be imposed under Rule 804(7) of the Rules.

6. In addition, we need to make appropriate orders under Rule 804(1) of the Rules dealing with the disqualification of Jason Belltree from that race.

Determination on the Papers

1. The General Manager of the Racing Integrity Unit has granted approval under Rule 903(2)(d) for the Information under Rule 804(2) to be lodged against the Respondents.

2. Both parties have consented to the matter being dealt with “on the papers” and without the need for a formal hearing.

3. The Committee has been provided and has carefully perused all of the relevant documents. These include:

(a) RIU letter of authorisation to lodge the charge dated 12 January 2021.

(b) Signed Information Number A8490 acknowledged by the Respondents as admitting the breach of the Rule.

(c) Details of exhibits itemised on 16 November 2020.

(d) New Zealand Racing Laboratory Services (“NZRLS”) certificate of analysis for sample number 142922 dated 9 December 2020.

(e) RIU analytical report dated 2 February 2021 and as amended on the same date.

(f) Racing Analytical Services Limited (“RASL”) certificate of analysis dated 20 November 2020.

(g) RIU sample identity record in respect of sample taken from Jason Belltree on 31 October 2020.

(h) Letter addressed to RIU by Dr Andrew Grierson BVSc on behalf of New Zealand Thoroughbred Racing dated 30 November 2020.

(i) Summary of Facts and Penalty Submissions on behalf of both parties.

The Charge

1. By letter dated 12 January 2021 Mr Mike Godber General Manager RIU authorised the filing of this charge against the Respondents alleging a breach of Rule 804(2). The charge alleges the Respondents presented the horse Jason Belltree to race on 31 October 2020 with a prohibited substance in its system namely caffeine.

2. Information Number A8490 sets out particulars of the charge and this was served on the Respondents on 23 February 2021.

3. The particulars of the charges are that:

“That on 31 October 2020 at Pukekohe being the registered trainers for the time being in charge of the horse Jason Belltree - the 3 year colt by Ferlax – Warren’s sister – which was brought to the Counties Racing Club meeting for the purposes of engaging in and did engage in race 2 – Past Presidents of Counties Racing Club 1,200 - when the said horse was found to have present in its metabolism a prohibited substance namely Caffeine which is in breach of the New Zealand Thoroughbred Racing Rule 804(2) and is therefore subject to the penalty or the penalties which may be imposed pursuant to Rule 804(7) of the said Rules.”

The Relevant Rules

1. Rule 804(2) creates an offence where a horse is brought to the racecourse having present in its metabolism a prohibited substance.

2. Rule 804(1) imposes disqualification for any race where a horse has been found to have had administered to it or present in its metabolism a prohibited substance.

3. The penalty provisions are detailed in Rule 804(7) and penalty options available include:

(a) Disqualification for a period not exceeding 5 years; and/or

(b) Suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c) A fine not exceeding $25,000.

Guilty Plea

1. The Respondents have admitted the breach. The charge is therefore proved.

2. The summary of facts and RIU penalty submissions are not disputed.

3. The Respondents have filed written submissions as to penalty.

Summary of Facts

1. On 31 October 2020 Jason Belltree won race 2 at the Counties Racing Club meeting held at Pukekohe.

2. Jason Belltree is trained by the Respondents.

3. Following the race Jason Belltree underwent a routine swab and there is no contest with the swabbing process.

4. Swab samples were couriered to the NZRLS for analysis. The “B Sample” was sent to the RASL in Australia at the Respondents request.

5. The Official Racing Analyst reported the presence of Caffeine, Theobromine, Paraxanthine and the Theophylline. These were detected in the urine sample taken from Jason Belltree after the race.

6. The letter from Dr Andrew Grierson details the effect of Caffeine as a stimulant. The presence of Caffeine, Paraxanthine, Theophylline and the Theobromine in the urinary sample arises where horses ingest Caffeine.

7. Dr Grierson confirms Caffeine and any of its metabolites including Theobromine, Theophylline and Paraxanthine are prohibited substances under the Prohibited Substance Regulations in the Rules.

8. A summary of facts filed on behalf of the Informant confirmed Mr Cooksley had been spoken to on 16 November 2020 at the stables at Byerley Park. He indicated he had no idea how caffeine had got into Jason Belltree’s system.

9. However, a subsequent interview with a stable staff member confirmed every morning he takes a teaspoon full of granules of the “Jason Winters tea bag” and puts it in his mouth and washes it down with water. The staff member also adds the teabag granules to his food when cooking.

10. Further the stable staff member confirmed every morning he urinated in the same corner of the box that Jason Belltree occupies.

11. A written report issued by NZRLS dated 2 February 2021 confirmed the presence of Caffeine and associated metabolites in the Jason Winters tea bag sample and also from 8 sawdust samples taken from the box occupied by Jason Belltree.

12. On 9 December 2020 confirmation was received from RASL that Caffeine and associated metabolites were present in the “B sample” provided by Jason Belltree.

13. There were no irregular betting patterns and the summary of facts confirms the probable cause of the presence of caffeine was as a result of contamination arising from the stable staff member urinating in the stable box.

The Respondents Response

1. The summary of facts are not disputed by the Respondents which has been confirmed in writing.

Penalty Submissions

2. Written penalties submissions were received from both parties. The RIU referred to the well-known principles on sentencing and more particularly as they relate to Thoroughbred Racing. They are:

(a) Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence, but the offender must be met with punishment.

(b) In racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

(c) A penalty should also reflect the disapproval of the JCA for the type of offending in question.

(d) The need to rehabilitate the offender should be taken into account.

3. It is acknowledged by RIU the first 3 principles have relevance. The latter is not necessarily applicable to the current circumstances.

4. The general principles or considerations of punishment, personal and general deterrence and public confidence in the profession/industry of Racing come into play in the balancing exercise of a Tribunal reaching appropriate sanctions.

5. These were referenced in the decision of an Appeal Committee in RIU v Lawson at paragraphs 26-32. We do not need to repeat what was said by the Appeal Committee. They are detailed in the penalty submissions submitted by RIU and have been further expressly approved and referenced recently in RIU v Orange.

6. These decisions direct a disciplinary approach to the imposition of sanctions for breaches of the Rules.

7. Quite correctly the RIU does not consider the Respondents to be habitual offenders or persons of low moral character to the extent they would bring the Thoroughbred Racing Code into disrepute.

8. However, in accordance with the first 3 principles of sentencing and as clarified in RIU v Lawson and RIU v Orange, it has been submitted a starting point of a fine of $2,000 as being appropriate. This is accepted by the Respondents.

9. The RIU submits an aggravating feature being a specific notification to Licence Holders as to the risks of having people urinate in horse boxes. This was sent by RIU to the relevant Racing Codes on 29 October 2018. RIU also see an aggravating feature of there being an absolute liability in the event they present a horse when it is not free of prohibited substances.

10. The RIU also details mitigating factors as being an admission of the breach and the Respondents being fully cooperative throughout the investigation process. They also reference a blemish free record of offending and note an improvement in systems.

11. Although both parties submit a fine of $2,000 as being appropriate this Committee must also determine whether or not that is appropriate. We have referenced precedents being RIU v J & J Dickey, RIU v DJ Simpson & RIU v Goldsack and having regard to those precedents we accept a fine of $2,000.00 is an appropriate starting point.

12. We do not see there should be any weight applied to either the aggravating or mitigating features referenced by the RIU. This is particularly given the offence is one of absolute liability.

Orders

We accordingly order:

1. Jason Belltree is disqualified from Race 2 at the Counties Racing Club meeting held on 31 October 2020 pursuant to Rule 804(1). Any stake monies which may have been paid to the connections should be forthwith refunded and amended placings determined having regard to this disqualification.

2. The training partnership of the Respondents are fined the sum of $2,000.

3. Costs of $1,262.25 being the costs of having the “B sample” tested in Australia be awarded in favour of the RIU. No costs will be awarded in favour of the JCA due to the matter being able to be determined on the papers.

Alan Harper

Chairman

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