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Non Raceday Inquiry RIU v C Kennett and J Kennett - Reserved Decision dated 15 October 2018 - Chair, Prof G Hall

Created on 17 October 2018

BEFORE A JUDICIAL COMMITTEE OF

THE JCA AT OAMARU

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR CRAIG KENNETT

Licensed Trainer

MR JOSH KENNETT

Open Horseman/ Licensed Trainer

Respondents

Information: A10192

Judicial Committee: Prof G Hall, Chairman

Mr G Clapp, Member

Appearing: Mr S Wallis, Stipendiary Steward, for the Informant

The Respondents in person

Date of hearing: 23 September 2018

Date of decision: 15 October 2018

RESERVED DECISION OF JUDICIAL COMMITTEE

[1] The informant, the RIU, has laid an information with respect to the respondents, Messrs C and J Kennett, the co-trainers of the horse WESTAR BELLA. The information alleges a breach of r 863 in that they started WESTAR BELLA in race 9 at the Kurow HRC meeting on 19 August when in an unfit condition to compete due to the horse having an infected and inflamed wither.

[2] Rule 863 provides: “No owner, trainer or horseman shall start or attempt to start in any race a horse in indifferent health or unsound or unfit condition to compete in such race.”

Informant’s case

[3] Mr Wallis represented the RIU and called two witnesses, Mr S Renault, Stipendiary Steward, and Dr P Gillespie, veterinarian. He first tabled a letter from Mr M Godber, the General Manager of the RIU, dated 14 September 2018 which authorised pursuant to r 1108(2) the laying of the charge alleging a breach of r 863.

[4] Mr Wallis opened the RIU’s case by describing the race on the videos. He demonstrated that WESTAR BELLA had initially been eased to the rear of the field and had settled fourth last. The horse was racing 4 back on the pylons and was at one point some 3 lengths behind the horse it was following. WESTAR BELLA began to lose ground and was second last with 1,200 metres to run. The horse was then eased down and taken out of the race.

[5] Mr Kennett in an opening statement and in response to the video said he had only had the horse for some two weeks. Her previous race was at Forbury Park and she had been leading the field when at the 500 metres she had “stopped like she was shot”. The field had run past WESTAR BELLA and the horse ran second last. She went “terrible”.

[6] Mr Renault gave evidence for the informant. He said he was Chairman of Stewards on the day and he had required Dr Gillespie to examine WESTAR BELLA. He produced the checklist that Dr Gillespie had given to the Stewards on the day. It described WESTAR BELLA as having “a badly inflamed/ infected wither”.

[7] Mr Renault said he had then questioned Mr C Kennett about the horse’s performance and subsequently had contacted Dr Gillespie and asked him to submit a detailed report. After considering the full report from Dr Gillespie, he then laid the charge that is before us for determination. When questioned, he said he had not charged the respondents on the day because it was the last race and he wanted time to consider the full report. He also believed both parties would need time to prepare for the hearing.

[8] Dr Gillespie then gave evidence. He stated he was the official veterinarian on the day and he had been asked by Mr Renault to do a post-race examination of WESTAR BELLA. He said the horse had an open sore on its wither. It had been sprayed extensively with a purple spray, either an antibiotic or gentian violet.

[9] Dr Gillespie said a horse would be extra-sensitive in the wither area. He recalled that Mr C Kennett had indicated to him that that area could be an issue for the horse.

[10] Dr Gillespie said he then reported his finding to the Stewards. This was the first of the two reports he had prepared.

[11] Dr Gillespie said he was then asked to provide a detailed report. He produced a report he had prepared dated 19 August 2018. It stated as follows:

After Race 9 at the Kurow Harness Race Meeting, held on the 19th August 2018, and acting on the instruction of Mr Shane Renault, I examined the horse Westar Bella in order to ascertain if there was an obvious reason for her poor performance.

The examination was carried out in the stabling area at Oamaru Racecourse, in the horse's allocated box. Immediately prior to the examination I questioned the horse's trainer, Mr Craig Kennett, if he was aware of any reason for the horse's poor performance, or if the driver had mentioned anything immediately after the race. These questions are part of my normal post-race examination procedure. The trainer replied "it was probably her wither annoying her".

The horse had returned from the wash bay and was held during the examination by an unidentified male person whom Mr Kennett asked to assist. Mr Kennett remained outside the box during the examination.

The first thing noticeable was that the horse's wither had been sprayed with either Gentian Violet (Hobble Chafe) or Terramycin Antibiotic Spray (so called "Purple Spray").

There was a scab attached to matted hair at the wither 's high-point and the surrounding area was swollen and painful to palpation. These are the hallmarks of an infected cellulitis or so-called 'Fistulous Wither'. This condition is common in horses; especially those that wear heavy covers. The integrity of the skin is usually broken from the contact with the cover, allowing bacteria and infection into the deeper tissues.

Because a horse's wither is a highly sensitive area, horses find this condition extremely painful.

Plain and simple the horse should not have been presented to race. If the trainer was uncertain, he should have requested the horse be examined by the race-day veterinarian prior to racing.

If Mr Kennett had done so on the day, I would not have allowed the horse to race.

[12] Dr Gillespie stated that he had 38 years veterinarian experience and this was almost exclusively equine related. He said if he had seen the horse pre-race he would not have allowed it to start. He was of the view that the horse had competed in an unfit condition.

[13] When questioned by Mr C Kennett as to whether the horse was stiff or tyed-up, Dr Gillespie replied it had appeared to walk normally.

[14] Dr Gillespie described it as being a scab on the wither. The area was swollen and painful to palpation. The area was denuded and right above it the mane was matted. There was a raw spot on the high point of the wither.

[15] Dr Gillespie emphasised it was an animal welfare issue. He commented on the letter that Mr C Kennett produced from Ms R Sutorius, veterinarian, that referred to WESTAR BELLA being tyed-up. He said it was a two pronged issue, perhaps. Whether or not the horse was tyed-up, it still had a fistulous cellulitis that would have affected its performance. If WESTAR BELLA had a recurring condition of tying-up, this could be cumulative. He accepted fillies and mares were prone to it. However, one condition did not rule out the other.

[16] Dr Gillespie reiterated that an infected sore is an animal welfare issue and that it appeared the condition was resolving when Ms Sutorius looked at the horse some days later. He said her report lacked the detail that would be necessary to put a time frame on the tye-up issue. He believed that Ms Sutorius’ report was not relevant as she had not seen the horse on the day.

[17] Dr Gillespie said he was absolutely adamant that it was an extremely painful condition and he would not be swayed from his view that it would have affected the horse’s performance on the day.

[18] Mr Wallis concluded his case by stating Dr Gillespie was a highly experienced and respected veterinarian. His evidence was clear that if he had examined the horse pre-race he would not have let her start. The horse had raced poorly and that was why Dr Gillespie had been asked to examine WESTAR BELLA. The charge was justified. WESTAR BELLA had started when in an unfit condition.

Respondent’s submissions

[19] The respondents represented themselves and Mr C Kennett (hereafter Mr Kennett) commenced the defence by stating that they had “sacked” the horse after the race. He had noticed the horse was a bit stiff after moving her from her box and believed she had tyed-up from the race. She was tyed-up when she went on to the float.

[20] Mr Kennett said the horse had had a slightly sore wither for three days. He had trained horses for 30 years and had never had a charge of this type before. He said he had washed the horse the night before and she had pink skin about an inch and half to 2 inches in diameter. His son Josh, the co-respondent, had sprayed the area with a purple spray before the race when the horse was on the course. He believed this had made the area look worse than it actually was.

[21] The respondents produced a letter from Ms R Sutorius, veterinarian. This letter was dated 23 August 2018 and stated that she had examined WESTAR BELLA at her owner’s property on 22 August. She said the mare had “a wither rub, which appeared to be resolving and a mild skin rash.” She observed that “the mare has a history of recurring tye-up.” A blood test was taken which revealed elevated muscle enzymes at a level consistent with an episode of tye-up at the races.

[22] Mr Kennett emphasised that the letter said the wither rub was resolving. He was not clear as to when she had examined the horse but we note the letter states that Ms Sutorius examined the horse on 22 August. We are told it was in the morning that day.

[23] Mr Kennett said they were training WESTAR BELLA because the horse had been “sacked” by her previous trainer / owners. He thought he might have been able to turn the horse around but it raced very badly at Forbury Park and had worked “terrible” during the week. It had stopped at Forbury like “the key had been turned off”. He thought this could have been because the horse had pulled hard.

[24] Mr Kennett said he had later discovered that the two rugs that had accompanied the horse were not the rugs she had worn when previously at the Hope’s property. This would explain the wither rub.

[25] Mr Kennett denied stating to Dr Gillespie that he believed the horse had performed poorly due to a wither issue. He said the horse had had one second placing some 16 months ago when trained by the Hopes. She had now finished as a racehorse and would be used for breeding.

[26] Mr Kennett said the horse’s form line was poor and she was 9/9 in the betting. He had just intended to race her a couple of times to see if he could get an improvement.

[27] Mr Kennett said he was “not into vets”. He would try and do things “naturally”. WESTAR BELLA had been pulling hard in her work and her Forbury Park performance was such that he thought he would give her another start.

[28] Mr Kennett said WESTAR BELLA had a slightly sore wither but had a chronic tye-up condition. He said Dr Gillespie had got it wrong with respect to another of his horses, VALMAGNE. He said Dr Gillespie was only human and may have got it wrong this time too. It was a only a brief examination and any horse would react to a small wither issue and might lash out. WESTAR BELLA was a grumpy old mare anyway.

[29] Mr Kennett said the issue was “with the wither not the legs or engine of the horse”. The whole history of WESTAR BELLA was to be considered and this indicated she tyed-up. The wither was only slightly sore. She looked okay to race.

[30] Mr Kennett said Dr Gillespie’s job was to examine the horse and explain why she had performed poorly. He did not know she had tyed-up and had put the blame on the wither.

[31] Mr Kennett referred to the Purdon case (ESCAPEE — fine of $600), which had been highlighted at the time on Trackside. He said he could not believe he was the only other trainer to be charged under this rule.

[32] Mr Wallis responded that there was also the Burgess case at Ashburton in 2009 where the fine was $400.

Respondent’s further submissions

[33] Mr Kennett communicated with the Executive Officer of the JCA stating that he was not aware there were cases that had considered this rule other than that of Purdon which he had raised on the day. He sought and was granted permission by this Committee to make a written submission directed to the cases that the RIU had identified. Mr Wallis was given the right of reply.

[34] Mr Kennett then made yet a further submission but this did not advance his argument significantly other than to demonstrate that a harness saddle sat near the base of a horse’s wither, and to state that in his view a horse with badly infected wither would not go out with good manners like WESTAR BELLA did and behave normally and trot in a good and proper correct trotting gait the way she did that day.

[35] Mr Kennett stated in his written submission that he believed there were in total five cases under this rule in the history of NZ harness racing.

[36] The oldest charge was from the 2000s against trainer Mr J Burgess. It did not state where the injury was on the horse but he submitted “it was still clearly worse than our case as Mr Burgess' horse got injured traveling to the races and he then took it to the oncourse vet to treat it after the race which landed him on charges.” WESTAR BELLA did not need any veterinary treatment at all. The veterinarian report three days later by Ms Sutorius clearly stated that it was healing on its own at that time. Mr Kennett said the only treatment he did to it was wash the area, plus the co-respondent Mr Josh Kennett applied spray on race day and he washed it again and Josh sprayed it again the next day before WESTAR BELLA went home to her owners. There was no other treatment by the respondents.

[37] Mr Kennett questioned why Dr Gillespie had not taken any photos. He believed his failure to do so was “an unbelievable mistake or omission by the Veterinarian and the RIU on the day”. The RIU could easily have asked Dr Gillespie to take photos or have taken photos themselves. The RIU had taken photos in two of the other four cases. Mr Kennett submitted that he could “only conclude that taking photos would have destroyed or hindered their case.” He also questioned why Dr Gillespie did not treat the wither and whether this was the actions of someone, especially a veterinarian, who was extremely concerned about the welfare of this horse or of a person who claimed that they alone represented the horse. We note Mr Kennett had the opportunity at the hearing to question Dr Gillespie as to this, but did not do so.

[38] Mr Kennett said he felt “bad” about questioning Dr Gillespie's integrity but he believed the veterinarian was clearly questioning his and Josh's integrity. He said “it was sad that it came down to [his] word against their word when they could have taken photos.” He did not question Dr Gillespie's integrity with his diagnosis in this case, so much as his testimony. He believed Dr Gillespie had made a mistake with his diagnosis and he was upset with Dr Gillespie saying he had admitted to anything and that he was there when WESTAR BELLA was examined. He said he had “witnesses to refute these two claims”.

[39] Mr Kennett believed the horses in the Purdon case and the Trathen case both had easily seen superficially injured sore hips. The RIU and oncourse veterinarians had taken photos and presented them as evidence against the trainers. The other case, Doody, was also clear cut as the horse had a laceration on a front leg which the trainer knew about and tried to cover up with a bandage, but the bandage fell down during the race and a Stipendiary Steward saw the severe laceration. In the report the vet said that it was a triangular flap of skin hanging down and the injury was full of grit. Mr Doody said that it had happened coming off the float at the races that day.

[40] Mr Kennett said WESTAR BELLA easily got past the Steward who checks every horse's neck brand before they go onto the track, with the neck brand being close to the wither region.

[41] Dr Gillespie said nothing alluding to the wither being bad to the respondents at the time. Mr J Kennett found it difficult to believe that Dr Gillespie said that he was concerned about the horse at the hearing when he seemed “upbeat” when he left the area the respondents were in on the day.

[42] Mr Kennett reiterated his belief that Dr Gillespie saw WESTAR BELLA's poor performance and was sent by the RIU to vet check the horse and he had put it down to the wither cover rub when it was later proven by Ms Sutorius that WESTAR BELLA raced in manner that was consistent with a horse that had tyed-up very badly. Ms Sutorius stated in her report that the mare was prone to tying-up. She was the horse's regular vet. Mr Kennett believed that seeing the wither cover rub prevented Dr Gillespie from doing a more thorough check. He disagreed that Dr Gillespie knows when a sore is infected. It was necessary to take a sample of the sore and test it for bacteria, and no sample was taken.

[43] Mr Kennett stressed again that WESTAR BELLA had come to him on her last legs with the owners in this preparation as a last chance. She had been finished with from the G and N Hope barn because of very poor performances and he was giving her a last go and he had had two weeks to try and improve her but she ran poorly at Forbury the Sunday before the race in question after leading and getting run over by 8 horses in the home straight to run second last. He was unhappy with her training and, although hoping for a good run, was expecting a poor one. He believed she had clearly tyed-up at Oamaru, which was probably her problem all along.

Informant’s reply

[44] Mr Wallis replied that the veterinary report from Ms Sutorius clearly stated that the wither issue was resolving. To use the word “resolving” would suggest that the "wound" that Mr Kennett stated in the race day transcript was on the wither, was improving.

[45] Mr Wallis said Mr Kennett was correct when he said no photos were taken. The suggestion that the reason photos were not taken would have destroyed or hindered the RIU's case was “unfounded” and was “completely rejected”. Based on the evidence of both Dr Gillespie and the admission from Mr Kennett about the "wound" on the wither on the day in question, the Stewards did not deem it necessary to have photographic evidence of the area.

[46] Dr Gillespie was alerted to an issue with the wither early on in the examination of WESTAR BELLA. Mr Kennett had based a lot of his case on the fact that the horse was suffering from muscle tye-up following the race. This matter was irrelevant to the case. The charge brought by the RIU was that the horse started in the race when in an unfit condition by having an inflamed and infected wither. Dr Gillespie in his evidence at the hearing stated that had he seen the horse prior to the race he would have scratched the horse on welfare grounds. Dr Gillespie's statement was based solely on the wither region that presented to him on examination.

[47] Mr Kennett also continued to say that the reason for the poor performance was because the horse was tyed-up. Mr Wallis said this was irrelevant to the charge. It was not necessary to prove the reason the horse performed poorly on the day. It was simply a question of whether the horse was in an unfit condition to compete due to having an inflamed and infected wither. Based on all the evidence from the transcript and the race day hearing, Stewards believed that this had been proved.

[48] Mr Kennett said that the wither had a wound and that it had got worse on the day of the race. This was in the transcript. So clearly, he knew there was an issue.

[49] Mr Wallis concluded his written submission by stating that Dr Gillespie has been a veterinarian for 38 years, is well respected and highly experienced. As Dr Gillespie had stated, he is the voice for the horse. The Stewards disagreed strongly with Mr Kennett's submission that Dr Gillespie did not know when a wound was infected and believed this line of defence was unreasonable given Dr Gillespie’s standing and experience.

Decision

[50] We are faced with a clear conflict of evidence. The informant relies on the examination and reports by Dr Gillespie, who has been a veterinarian in the equine field for some 38 years. We accept that Dr Gillespie is a well-respected and highly experienced veterinarian.

[51] The respondents refer to Mr C Kennett’s experience as a trainer for over 30 years and the examination of the horse some three days after the race in question by Ms Sutorius, who we accept is also an experienced and respected equine veterinarian, and her report which records that a blood test taken at that time indicated an episode of tye-up at the races.

[52] Dr Gillespie examined WESTAR BELLA in the stabling area at the racecourse after the race. He observed that the horse's wither had been sprayed with either Gentian Violet or Terramycin antibiotic spray. There was a scab attached to matted hair at the wither 's high-point and he has said that the surrounding area was swollen and painful to palpation.

[53] Dr Gillespie’s expert opinion was that these were the “hallmarks” of an infected cellulitis or fistulous wither, which was a common condition in horses, especially those that wear heavy covers. The skin was broken from the contact with the cover, allowing bacteria and infection into the deeper tissues. He said that a horse's wither was a highly sensitive area, and this condition was extremely painful.

[54] We accept Dr Gillespie’s evidence. He has been unswerving in his evidence at this hearing, despite his being closely questioned by Mr Kennett, that WESTAR BELLA was unfit to race due to her having an inflamed and infected wither.

[55] Dr Gillespie did not witness evidence of WESTAR BELLA being tyed-up but did not discount the possibility that this was so, and consequentially that there were two operative causes with respect to her poor performance on the day: the wither and the tying-up.

[56] Dr Gillespie has stated that had he been asked to examine WESTAR BELLA pre-race he would have had no hesitation in ruling her unfit to race.

[57] Mr Kennett is a very experienced trainer. He has stated he does not readily seek veterinarian advice and prefers to treat his horses “naturally”.

[58] Mr Kennett has acknowledged that WESTAR BELLA had a sore on her wither on raceday but he did not believe that that had impacted adversely on the horse’s ability to perform in the race in question. He has drawn our attention to the chronic tye-up issues he believes the horse has suffered from.

[59] Mr Kennett has questioned why the Stewards or Dr Gillespie did not take a photograph of the wither. Whilst we agree this would have been of assistance to this Committee and also best practice, it is far from fatal to the informant’s case. It is simply further evidence that is not before us.

[60] We are aware that Mr Kennett disputes the fact that he drew Dr Gillespie’s attention to the wither and that he proffered this as a reason for WESTAR BELLA’s poor performance. We do not need to determine this matter. We are not basing our decision on any alleged admission by Mr Kennett that the wither may have affected the horse’s performance.

[61] Mr Kennett has produced a letter from a respected veterinarian, Ms Sutorius, which states that when examining WESTAR BELLA some three days after the race the wither issue was resolving itself and that the horse had enzyme readings which were consistent with an episode of tye-up at the races.

[62] Significantly, Dr Gillespie does not take issue with this report. He believes it is quite possible that the wither issue was resolving itself, as Ms Sutorius states, and that the horse had enzyme readings that were consistent with an episode of tye-up at the races. He has emphasised that he had no tye-up concerns on the day.

[63] We find that ultimately, we do not need to determine whether WESTAR BELLA did indeed have a tye-up issue, because as Dr Gillespie has said, it is quite possible there were the two issues which each contributed to WESTAR BELLA’s poor performance. In addition, putting the issue of the horse being tyed-up completely to one side, Dr Gillespie has said that as the official veterinarian on the day, had he examined WESTAR BELLA prior to the race, he would have ruled her unfit to race because of the wither issue.

[64] We prefer Dr Gillespie’s evidence as to the nature and significance of the wither condition to that of Mr Kennett, despite our accepting that the respondents are clearly genuine in their belief that WESTAR BELLA was fit to race.

[65] We refer back to r 863 which proscribes a trainer from starting a horse in a race in an unfit condition to compete in the race. We are satisfied to the standard of on the balance of probabilities as required by r 1008A, that the respondents did start WESTAR BELLA when she was unfit to race due to her suffering from an inflamed and infected wither.

[66] We thus find the charge proved.

[67] We require written submissions as to penalty from the parties.

[68] Mr Wallis is to produce the respondents’ record and written submissions by 3 pm Thursday 18 October.

[69] The respondents are to respond by 3 pm Wednesday 24 October.

Dated at Dunedin this 15th day of October 2018.

Geoff Hall, Chairman

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