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Non Raceday Inquiry RIU v D J Simpson - Reserved Penalty Decision dated 17 July 2019 - Chair, Prof G Hall

Created on 18 July 2019

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY AT DUNEDIN

UNDER THE RACING ACT 2003

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

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND DARRYN JOHN SIMPSON

Licensed Public Trainer / Open Horseman

Respondent

Information: A4824

Judicial Committee: Prof G Hall, Chairman

Mr P Knowles, Member

Appearing: Mr C Allison, for the Informant

The Respondent in person, with the assistance of Mr S Campbell

Date of oral decision as to breach: 4 July 2019

Date of reserved penalty decision: 17 July 2019

DECISION OF JUDICIAL COMMITTEE

[1] The informant, the RIU, has laid information A4824 with respect to the respondent, Mr Darryn Simpson, alleging a breach of rr 1004(1A), (3) and (4).

[2] This information alleges: “On the 21st of October 2018, Darryn John Simpson, being the registered trainer of the Standardbred PRES THE BELLE presented the horse to race in Race 6, the Night ‘N Day Lawrence/Balclutha/Milton Handicap Trot, at the Tuapeka Harness Racing Club’s meeting with a prohibited substance, namely O-desmethylvenlafaxine which is a metabolite of Venlafaxine, in its system. This is a breach of the Prohibited Substance Rule, r 1004(1A), (3) and (4) and you are therefore liable to the penalty or penalties which may be imposed in accordance with r 1004(7)(a) and (b) and to the horse penalties in r 1004(8) and 1004D(1).”

[3] Rule 1004 states:

(1A) A horse shall be presented for a race free of prohibited substances.

(3) Where 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.

(4) A breach of sub-rule (1A), (2), (3) or (3A) is committed regardless of the circumstances in which the TCO2 or prohibited substance came to be present in or on the horse.

[4] Rule 1004(7) provides:

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

(a) a fine not exceeding $20,000; and/or

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

(8) Any horse connected with a breach of this rule shall be disqualified from the race and may in addition be disqualified for a period not exceeding five years.

[5] Rule 1004(8) states:

Any horse connected with a breach of this rule shall be disqualified from the race and may in addition be disqualified for a period not exceeding five years.

[6] Rule 1004D(1) states:

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.

[7] The matter was heard at Forbury Park Raceway on 4 July. The respondent confirmed that the matter was not admitted. However, he also stated that he accepted the factual summary that had been prepared by the informant.

[8] Mr Allison produced a letter dated 16 January from Mr N McIntyre, General Manager Stewards, authorising the laying of the charge.

[9] This summary states:

The Respondent in this matter Mr Darryn Simpson is the official trainer of PRES THE BELLE. Mr Simpson is the holder of a Public Trainer’s licence and is also an Open Horseman.

2. Mr Simpson who is aged 44 years has been licensed with Harness Racing New Zealand since 1994 when licensed as a Trials Driver. Mr Simpson’s stables are situated at the Forbury Park Raceway. He currently has a team of around 10-12 horses in work.

3. PRES THE BELLE is a five-year-old mare, which after racing at the Wyndham Harness Racing Club meeting on the 17th of January 2019, had raced 21 times for seven wins, three seconds and two thirds for total stake money of $44,678.

4. PRES THE BELLE is owned by Messrs S M Campbell, D G Minehan, S B Heal and D J Nind.

5. Mr Simpson correctly entered and started the PRES THE BELLE in Race 6 the Night ‘N Day Lawrence/Balclutha/Milton Handicap Trot at the Tuapeka Harness Racing Club meeting held at Forbury Park Raceway, Dunedin on Sunday 21 October 2018. Total stake money for the race was $10,000. The breakdown of stake money was 1st $6,250, 2nd $1,540, 3rd $770, 4th $440, others $200.

6. PRES THE BELLE won her race and was swabbed post-race.

7. PRES THE BELLE’s urine sample numbered 61667 was sent to the New Zealand Racing Laboratory Services (NZRLS) for analysis.

8. On the 2nd of November 2018 the NZRLS formally advised the RIU that the sample had contained a prohibited substance namely O-desmethylvenlafaxine, which is a metabolite of venlafaxine.

9. Venlafaxine is found in a common human medication used as an anti-depressant.

10. On the evening of the 2nd of November Mr Simpson was notified of the positive result as PRES THE BELLE was due to race at the New Zealand Metropolitan Trotting Club meeting.

11. As a result, Mr Simpson elected to scratch PRES THE BELLE from her engagement after receiving veterinary advice.

12. PRES THE BELLE was swabbed at the New Zealand Metropolitan Trotting Club meeting after being scratched, with the urine/blood samples sent to the NZRLS for analysis.

13. The samples returned a clear result.

14. On 5 November 2018 Racing Inspectors took sawdust samples from the box PRES THE BELLE is permanently stabled in at Forbury Park Raceway. Samples were also randomly taken from a further 10 boxes including other boxes used by Mr Simpson and by other trainers on race nights.

15. The samples were sent to the NZRLS for analysis.

16. The sawdust samples taken from the box used by PRES THE BELLE confirmed the presence of O-desmethylvenlafaxine and venlafaxine.

17. A total of 10 out of the 11 boxes sampled contained either traces or presence of prohibited substances.

18. NZRLS advised the RIU that the samples contained not only O-desmethylvenlafaxine and venlafaxine but also other human medications including citalopram (anti-depressant) and metoprolol (blood pressure/angina). These medications were not in all samples, which predominately contained O-desmethylvenlafaxine and citalopram.

19. RIU staff interviewed other licensed persons who acknowledged they had urinated in boxes at Forbury Park Raceway while they had been taking medications some of which contained venlafaxine.

20. On 6 November 2018 Racing Inspectors formally interviewed Mr Simpson who was unable to explain how the prohibited substance come to be in the horse’s system.

21. Mr Simpson acknowledged he had also urinated in boxes at Forbury Park while he had been taking medication which contained venlafaxine but had ceased this practice when he became aware of a previous investigation conducted by the RIU.

22. Dr Andrew Grierson the Chief Veterinarian for HRNZ confirmed there has been cases overseas where horse boxes had been contaminated by humans who had urinated in the sawdust while taking medication including venlafaxine.

23. The Forbury Park Trotting Club were advised of the contamination of not only the boxes used by Mr Simpson, but also other boxes used on race nights.

24. The Club is in the process of replacing the sawdust and cleaning all the boxes used at Forbury Park.

25. PRES THE BELLE was swabbed again at the Canterbury stable she was stabled at during New Zealand Cup Week with the horse providing a clear sample

26. PRES THE BELLE has subsequently raced at the Gore Harness Racing Club meeting on 27 December 2018 where she finished in third placing and was swabbed post-race. The swab returned a clear result.

27. Mr Simpson was fully co-operative throughout the investigation and although acknowledging his actions, he had been at a loss to explain how the positive result occurred.

28. PRES THE BELLE has already been disqualified by the JCA effective 17 December 2018 pursuant to r 1004D(1).

[10] Mr Allison stated that the RIU had notified the respective codes to advise licence holders and clubs of the possibility of contamination through urination in boxes. This was on 29 October 2018.

[11] Mr Simpson did not wish to question Mr Allison or to make specific comments with respect to the summary.

Respondent’s case

[12] Mr Simpson produced a fulsome written submission and he and Mr Campbell also presented oral submissions.

[13] Mr Simpson acknowledged he was the official trainer of PRES THE BELLE and accepted that the horse had returned a positive to a prohibited substance. He said he wanted to state at the outset that at no time had he urinated in PRES THE BELLE’s box.

[14] Mr Simpson said he had commenced training at Forbury Park in mid-2018 and usually trained about 6 to 10 horses at any one time. He rented boxes in the stable complex.

[15] Mr Simpson said PRES THE BELLE had been housed in box 66 at the time in questioned and had been in that box for some time prior to this. He said the alleyway between the stables is used frequently by visiting trainers and drivers. Box 66 backed on to this alleyway and it was possible that persons could have urinated against the wall of the box and the urine could have tracked underneath. He said there was a gap between the bottom of the wall of the box and the ground.

[16] Mr Simpson said Forbury Park Trotting Club had changed sawdust in some of the boxes after the Ferguson positive but not that in PRES THE BELLE’s box.

[17] The positive result from PRES THE BELLE was a surprise to Mr Simpson as he had never administered or permitted administration of any drug to any horse he had trained, including PRES THE BELLE. He stated he believed he had taken every step, as he did with every horse he trained, to ensure that the horse was in a lawful state to race.

[18] On the day he was told of the positive result from PRES THE BELLE (2 November 2018) she was due to race at Addington. Because he was perplexed as to how the horse could return the positive swab, he elected to scratch her to avoid any risk there could be a further breach of the Rules of Harness Racing. This was precautionary and was to both his detriment and that of the owners of the horse. The horse returned clear swabs on that occasion.

[19] Mr Simpson explained that he had told the Investigators when he was interviewed on 8 November that he was on medication as a result of an accident some years ago and O-desmethylvenlafaxine was a metabolite of one of the drugs he was prescribed.

[20] Mr Simpson said at the RIU interview the two positives swabs returned by Mr Ferguson on 12 and 19 July 2018 were discussed. He understood the positives were to venlafaxine and not the metabolite O-desmethylvenlafaxine and that venlafaxine was absorbed by the oral route by horses. (We note in fact the positives in the Ferguson case were to O-Desmethylvenlafaxine.)

[21] Mr Allison had questioned Mr Simpson on 20 August when investigating the Ferguson positives. He said he told Mr Allison that he had urinated in the boxes at Forbury Park and that this was a common practice for all persons working or visiting the stable area. He believed the practice was similar throughout New Zealand. He added he had stopped using venlafaxine some two months before speaking to Mr Allison and he had told him this at the time. He also understood that testing of sawdust from the boxes Mr Ferguson was using identified the presence of other human medications, which he believed suggested the likelihood of various persons urinating in the boxes.

[22] Mr Simpson believed that Forbury Park Trotting Club had been informed on 2 September 2018 of the contamination not only of the boxes used by Mr Ferguson but other boxes as well. Mr Allison had recommended that the Ferguson boxes not be used in the interim and that the sawdust be replaced. He believed Mr Allison had recommended that the remaining boxes also have the sawdust removed.

[23] Mr Simpson believed the Club had advised Mr Allison that the Ferguson boxes had had the sawdust changed and that they were undertaking processes to minimise a repetition. He was not aware of any boxes being cleaned before PRES THE BELLE’s race or indeed since, other than the Ferguson two or three boxes. He said the Club had had issues over time and that was perhaps why it had been slow to respond.

[24] Mr Simpson had not been informed of the seriousness of the contamination and the likely consequences of the boxes at Forbury Park not being cleaned. He was not aware that horses could get prohibited substances like venlafaxine through contaminated sawdust, otherwise he would have cleaned out his own boxes. He only formally became aware of this fact upon being charged.

[25] The sawdust used at Forbury Park is supplied by the raceway and trainers may use it at their discretion. There is the possibility of it being contaminated before arrival or where it is stored, as it is unattended, and the public have access. Mr Simpson also commented that PD workers were used by the Club.

[26] Mr Simpson emphasised that after the Ferguson case there was no notice given to trainers or owners of the risk of contamination and no action was taken by the Club to address the risk proactively. Nor was there any evidence to suggest that the RIU had followed up with Forbury Park to ensure risk mitigation. He believed had this occurred he would not have found himself in the situation he was in. After receiving notification of the positive, he had steam cleaned his boxes. He acknowledged he was aware of the Ferguson positives in August but had not thought to clean his boxes at that time.

[27] Mr Simpson concluded his written submission by stating he had never administered any prohibited substance to the horse and that there was strong evidence that unforeseen contamination that existed in a number of the boxes at Forbury Park was the cause. It was impossible to know who may have entered what box at Forbury Park as there was “no real security and therefore it’s impossible to have any control over that and the likelihood of contamination.”

[28] Mr Simpson saw his situation as no different to that of Mr Ferguson and sought a similar outcome where no blame was attributed to him. He had already been penalised with loss of reputation and asked us to consider the effect on his owners and potential owners, his loss of income from the race, and the stress and anxiety the matter had caused him over a period of some eight months.

[29] Mr Campbell supported many of Mr Simpson’s submissions and emphasised that the contamination issue affected the whole stable complex and was a matter that was outside anyone’s control.

[30] Mr Allison responded stating that the RIU believed Mr Ferguson’s case was different to that of the respondent. Mr Ferguson had turned up on race night and his horses were only in the boxes briefly and there was nothing he could have done to prevent the positive. Whereas, Mr Simpson was training from the stables and was on medication that contained O-desmethylvenlafaxine and had acknowledged that he urinated in the boxes at Forbury Park. He said Mr Simpson had voluntarily provided this information at the time of the Ferguson inquiry. He added, however, that it was not just Mr Simpson that was doing this, as the analysis showed the presence of medications other than those Mr Simpson was taking.

[31] Mr Allison also stated that Mr Simpson, knowing what had happened to Mr Ferguson, should have realised the need to change the sawdust in the boxes he was using. He acknowledged that Mr Simpson said he had had stopped urinating in the boxes, but the damage had apparently been done by then and the sawdust had not been changed.

[32] Mr Simpson replied he had been on medication since a car accident 20 years ago and his practice had not changed in that time frame. He had had horses swabbed over the years and they had come back clear. He also had winners immediately before and after this incident and they had come back with swabs that were clear. Mr Allison confirmed this was correct.

[33] Mr Simpson stated he believed his case was similar to Mr Ferguson. The raceway gates were open all night and it would be simple for someone to come up the alleyway between the boxes. He had seen people coming out of the boxes. He agreed that he or Mr Johnson, who assisted him for time to time, had only topped up the sawdust in PRES THE BELLE’s box after the Ferguson positives.

[34] Mr Simpson added that by telling the truth when being questioned at the time of the Ferguson positives, he had “thrown [him]self under the bus.” Mr Allison confirmed Mr Simpson’s co-operation at that time and subsequently.

Decision

[35] We are aware that there have been several cases recently where the RIU have considered the trainer was not liable for the prohibited substance breach. In RIU v Walkinshaw 26 April 2016, RIU v K M & T R Barron 11 November 2016 and RIU v Brick, Ramsay, Ritchie & Manning 12 July 2019, RIU investigations found that the trainer did not know and could not have known that their horse would be in breach the Prohibited Substance Rule when they raced.

[36] The decision whether or not to charge the trainer with a breach of the presentation rule lies with the RIU. In determining the liability of trainers, we understand that the RIU makes an assessment of the trainer’s conduct, knowledge, information available and whether they could and/or should have done anything differently in the circumstances. Put in simple terms, it is a matter that is within their prosecutorial discretion. It is not a matter for the JCA.

[37] In the cases we have listed we understand that the RIU made the pragmatic decision not to charge the trainers involved but to have their respective horses disqualified. A further example is RIU v Ferguson 22 October 2018, which has been cited in the submissions of both parties.

[38] It is no defence to the charge for Mr Simpson simply to state that he should not have been charged and should have been treated in the same manner as Ferguson and the other trainers. Legal precedent provides that trainers have an “absolute liability” to present their horses free of prohibited substances: see eg Justice v HRNZ [2012] NZHC 3484 where Whata J said at [57]:

I agree with the Tribunal that a breach of r 1004(2) triggers liability regardless of the precautions taken by a trainer or other person in charge of the horse to comply with r 1004(1), (2) or (3). Those precautions are part of the circumstances or external conditions by which the prohibited substances came to be in or on the horse and are not relevant to whether r 1004(2) or (3) has been breached. While the Court is generally reluctant to impose liability without fault, I can see no room for bypassing the language used at sub-rule (4) to enable those precautions to be taken into account when assessing liability for breach. Indeed, to do so would do violence to the words used, and in a way that is unnecessary to achieve the purpose of the rule in light of context. This is unlike those cases where the Court refused to infer absolute liability. Here, the rule expressly directs that no regard be had to the circumstances of the breach.

[39] In this particular case Mr Allison has stated that the RIU are satisfied that Mr Simpson had knowledge that the Ferguson horses had come into contact with a prohibited substance and that contaminated sawdust was believed to be responsible. In addition, Mr Simpson has acknowledged that he (and we accept, as does the RIU) and persons unknown, have urinated in the boxes. Prescribed medications have been found to be present in the sawdust in the boxes and these have resulted in positives in the Ferguson case and now with respect to PRES THE BELLE. We can see the reason that the RIU have chosen to differentiate between Mr Simpson and Mr Ferguson, in that they do not believe Mr Ferguson was responsible for the horses’ contact with the medication and that he could not have done anything to prevent that contact from occurring. But even were we not able to do so, it would not affect the respondent’s liability having regard to the breach of the rule being one of absolute liability.

[40] We find the charge under r 1004(3) to be proved.

[41] We inquired of the parties whether they wished to make oral or written submissions as to penalty. Both parties indicated that they wished to make oral submissions and Mr Allison also produced a written submission.

Informant’s penalty submissions

[42] The informant identified the relevant sentencing principles as those now reflected in cl 5.1 of the Rules of Practice and Procedure for the Judicial Committee and Appeals Tribunal which states:

The purpose of proceedings before a Judicial Committee or Appeals Tribunal include:

• to ensure that racing is conducted in accordance with the code rules;

• to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry;

• to uphold and maintain the integrity of the sport of racing and the racing industry; and

• to protect the participants in the sport of racing, the racing industry, and the public.

[43] The relevant precedents which would be of assistance to the Judicial Committee were as listed as:

RIU v A Browne 1 September 2017

Mrs Browne presented a thoroughbred horse to race with the prohibited substance Sotalol which is a human medication taken for abnormal heart rhythms. The medication was taken by a stable worker of which Mrs Browne was aware. Mrs Browne had a lengthy career in the thoroughbred industry and had an impeccable record. The breach was admitted by Mrs Browne and she was fined $4,000 plus $1,500 costs associated with the testing of the “B” sample and JCA costs of $500.

RIU v K & L Rae & K Williams 26 November 2018

Mr and Mrs Rae and Ms Williams presented a thoroughbred horse to race with methamphetamine at a very low level. Stable staff were tested with all persons providing clear results. Further tested conducted by the RIU found other licence holders at the Riccarton training centre were using methamphetamine. The breach was admitted and the JCA imposed no penalty other than the disqualification of the horse and $1,250.56 costs associated with the testing of the “B” sample.

RIU v N Chilcott 4 December 2013

Ms Chilcott was charged with presenting a standardbred horse to race with a prohibited substance, namely tramadol. Ms Chilcott was legally prescribed the medication for a back complaint. She was initially unable to explain how the substance come into contact with her horse, however later believed it was through contact with the tongue tie of the horse after she took the medication. Ms Chilcott admitted the breach and she was fined $3,300 and ordered to pay costs of $1,400 to both the RIU and JCA.

[44] Aggravating features were:

a. Mr Simpson was aware of the previous RIU investigation which resulted in the disqualification of two other horses which were presented to race at Forbury Park.

b. Mr Simpson had the opportunity to clean his stable of the sawdust which has led to the prohibited substance being present in PRES THE BELLE.

c. Mr Simpson has acknowledged he had been urinating in the stable complex while taking the medication which contained venlafaxine.

d. An Advisory was sent by the RIU to the respective racing codes on 29 October 2018 which was subsequently relayed to clubs and licence holders via their respective websites. The Advisory was in relation to contamination which had occurred at racecourses where horses had been contaminated with prohibited substances through sawdust, the need to ensure the sawdust was replaced on a regular basis, and to ensure licence holders desist from urinating in boxes. Mr Allison believed that information had also been placed on the various racing websites.

e. Despite strong evidence Mr Simpson failed to acknowledge any responsibility and had denied the breach of the rule. (We note that this is the absence of a mitigating factor rather than the presence of an aggravating one.)

[45] Mitigating Circumstances were:

a. When spoken to by RIU Racing Investigators Mr Simpson was co-operative and made his stables openly available for inspection.

b. The substance found in the system of PRES THE BELLE was not a medication used for equine purposes and the RIU acknowledge the positive was as a result of contamination in the sawdust rather some carelessness in the use of a prohibited substance.

c. The medication containing the venlafaxine is not an illegal substance and had been legally prescribed.

d. Mr Simpson was very open and honest about the use of the personal medication which also assisted in identifying the cause of a previous contamination.

e. The RIU undertook further random testing of sawdust from boxes at Forbury Park Raceway which revealed either traces of or contained prohibited substances in 10 out of 11 boxes tested.

f. Some of the medications found in the sawdust from other boxes were medications that Mr Simpson was not taking.

g. Mr Simpson was not the only person who had urinated in the boxes as other persons spoken to had also acknowledged the practice.

h. Mr Simpson has no previous breaches of the prohibited substance rule.

i. Mr Simpson has conducted himself in an honest manner throughout the investigation.

[46] Mr Allison concluded his penalty submission by stating that the presentation of PRES THE BELLE with a prohibited substance was a result of an historical practice of urinating in the sawdust in the boxes. The three recent positive tests and the testing conducted at Forbury Park Raceway which found 10 out of 11 boxes to be contaminated had been a “wakeup call” for the Forbury Park Trotting Club and the users of the track facilities. The RIU acknowledged that Mr Simpson was not the only person who was responsible for the contamination of the boxes.

[47] With respect to the appropriate penalty, the informant stated that the JCA guidelines dated 1 May 2015 have a starting point of $8,000 for a breach of r 1004(1A).

[48] The RIU submitted that after taking into consideration the mitigating factors, which outweigh the aggravating factors, and the unusual circumstances of this investigation, a fine of $2,000 should be imposed.

[49] PRES THE BELLE has already been disqualified pursuant to r 1004D(1) effective from 18 December 2018 and the RIU sought no further horse penalties.

Respondent’s submissions as to penalty

[50] Mr Simpson said he had been a trainer in the harness industry for a number of years and emphasised he had a clean record. He endeavoured to protect his reputation and that of his owners at all times. He reiterated his belief the contamination issue had not been appropriately dealt with by the Forbury Park Trotting Club.

[51] In response to questioning by the Committee, he said he was the only public trainer at Forbury Park, although there were some with licences to train, and he was not privy to the action the Club had taken or was taking with respect to the contamination. Trainers had gone to the Club asking for security cameras and had been told they were coming. That was four months ago in the last amenities grant and he still had not seen one. The Club had also said it was their property and there would need to be warning signs etc, installed.

[52] Mr Simpson concluded his submission by stating that not only had he lost the race in question, but he had also lost the horse, which was now Auckland based.

Decision as to penalty

[53] The starting point in the JCA Penalty Guide is a fine of $8,000. As the informant rightly recognises, a penalty at this or indeed near this level is not appropriate in this case. Their submission is a fine of $2,000. Mr Simpson seeks that we impose no penalty at all.

[54] We have regard to the need to uphold and maintain the high standards expected of those participating in the industry in order to ensure its integrity.

[55] This is an unusual case. The source of the positive is accepted to be contaminated sawdust. The drug is a metabolite of venlafaxine, which is a medication that the respondent had been prescribed as a consequence of an accident in the past. He has stated that he had stopped taking the medication some two months before he spoke to Mr Allison on 20 August, and thus over a month before the Ferguson positive, and that he never urinated in the box of PRES THE BELLE, although he has acknowledged that he like many others has urinated in the Forbury Park boxes from time to time. We accept security at Forbury Park is such that the possibility a person or persons unknown may have urinated in PRES THE BELLE’s box cannot be discounted. The source of the contamination thus cannot be identified.

[56] The breach, as we have found, is one of absolute liability. But in determining penalty and when considering the issue of culpability, it is appropriate for us to consider what precautions the respondent could have taken to avoid the possibility that PRES THE BELLE would return a positive in circumstances where he was aware there was a possibility of contaminated sawdust in the boxes at Forbury Park.

[57] In this regard we note he had not taken the opportunity to clean out the boxes he was renting from the Club and, in particular, to replace the sawdust. He chose rather to top up the sawdust and to wait until the Club itself took some action. We are told that the Club ensured that three boxes were cleaned. We understand that these were the boxes that Mr Ferguson had used. It is not clear whether any other boxes were cleaned. Mr Allison in his written submission states that the Club is in the process of replacing the sawdust and cleaning all the boxes used at Forbury Park. We do not know whether or not this has been completed. Mr Simpson says it has not. Although Mr Simpson did ultimately steam clean his boxes and replace the sawdust, this action was not taken until after PRES THE BELLE returned the positive.

[58] We observe that the Advisory letter to the codes promulgated by the RIU was one week after PRES THE BELLE’s race.

[59] We have read the cases that the informant has identified as being helpful precedents. The penalties range from a $4,000 fine to no penalty at all, but with costs being awarded. The facts vary; none are on all fours with this case. They give some assistance, however, with determining the appropriate range.

[60] We believe the RIU’s penalty submission is close to the mark in the unusual circumstances of this case. We observe it makes reference to the mitigating factors of the respondent’s clear record and co-operation with the RIU inquiry both in this case and in that of Mr Ferguson.

[61] While the respondent has not admitted the breach, he has not required the informant to prove the fact that the swab was positive. As is evident from our earlier decision as to breach, the defence centred on the difference in approach that was taken with respect to the respondent and that that was taken with Mr Ferguson. The nature of this defence was such that it has not required the informant to produce written briefs or to call oral evidence. Despite there being numerous teleconferences, for all intents and purposes the RIU has been able to proceed as if the matter was admitted. The respondent has suffered financial loss through the disqualification of the horse, but we attach little weight to this as it is a usual consequence of a breach of this particular rule.

[62] Looking at matters in the round, we believe a fine of $1750 is appropriate. This is a little less than the sum for which the informant contended and is due to the fact that we give slightly greater weight to the respondent’s co-operation with respect to the two RIU inquiries and, in particular, that in Ferguson.

[63] We fine Mr Simpson the sum of $1,750.

[64] PRES THE BELLE was disqualified by a JCA ruling on 17 December 2018 pursuant to r 1004D(1). There is no need for any further order in this regard.

Costs

[65] The RIU does not make an application for costs.

[66] Whilst there have been a number of teleconferences with respect to this matter it has been heard on a raceday. There is no order for JCA costs.

Dated at Dunedin this 17th day of July 2019.

Geoff Hall, Chairman

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