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Non Raceday Inquiry RIU v E Duganzich - Reserved Decision dated 1 July 2019 - Chair, Mr T Utikere

Created on 05 July 2019

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND E DUGANZICH

Respondent

Judicial Committee: Mr T Utikere (Chairman)

Mrs N Moffatt (Member)

Parties: Mr S Irving (for the RIU)

Mr E Duganzich (as the Respondent)

Mr A Duganzich (as Lay Advocate)

Hearing: 18 June 2019 at Awapuni Racecourse

RESERVED DECISION OF JUDICIAL COMMITTEE DATED 1 JULY 2019

FACTS

[1] The Respondent has been charged with a breach of Rules 61.1 and 61.3 of the New Zealand Rules of Greyhound Racing.

[2] The relevant Rules are as follows:

Rule 61.1: The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance.

Rule 61.3: Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence.

[3] The specific Information alleged:

Information No A7182
THAT on 27 March 2019 Earl Stephen Duganzich, licensed trainer and person in charge of the greyhound ‘Night Howler’ who ran in Race 5 at the Wanganui Greyhound Racing Club meeting at Hatrick Raceway, failed to present the greyhound free of the Category 1 Prohibited Substance, [D-Arg2] Dermorphin [1-4], being an offence under the provisions of Rules 61.1 and 61.3 and punishable pursuant to Rule 63.1 and 63.4 of the New Zealand Greyhound Racing Association Rules.

PRELIMINARY MATTERS

[4] Following a teleconference held with both parties on 16 May, the Committee had issued a Minute dated 16 May which identified that the Committee was in receipt of the Notice of Appointment, the Charge Rules and Penalty Provisions and an Authority to Charge Letter from the General Manager of the Racing Integrity Unit (RIU), Mr M Godber. The Respondent identified that he denied the breach and this matter was set down for a hearing on 11 June at Awapuni Racecourse.

[5] An adjournment request was received from the Respondent on 5 June. For reasons identified in a Minute dated 7 June, the adjournment request was granted, with the hearing rescheduled to be heard on 18 June.

THE HEARING

[6] Mr Duganzich attended the hearing with the support of his father Mr Duganzich (Senior), who acted as Lay Advocate. The RIU also submitted an alleged Summary of Facts, which stated:

1. The Respondent Earl Stephen Duganzich is 48 years old and is a licenced trainer under the Rules of New Zealand Greyhound Racing (GRNZ).

2. He has been involved in the industry all his life.

3. He trains eight greyhounds from his kennels at Turakina, Wanganui where he lives with his partner and son, sharing the property with his parents who are both ex greyhound trainers.

4. The Respondent owns and trains the two year old dog ‘Night Howler’.

5. On 27 March 2019 ‘Night Howler’ finished second in Race 5, the ‘River City Gas C1’, at the Wanganui Greyhound Racing Club’s meeting at Hatrick Raceway.

6. The greyhound was post-race swabbed (#128914).

7. ‘Night Howler’ earned gross stake money of $331.

8. On 12 April the NZ Racing Laboratory Services (NZRLS) issued a certificate of analysis detailing the sample positive to [D-Arg2] Dermorphin [1-4]-OH.

9. [D-Arg2] Dermorphin [1-4]-OH (sequence Tyr-D-Arg-Phe-Gly-OH) is a tetrapeptide analogue of Dermorphin.

10. Dermorphin is a naturally occurring substance in certain species only, including bacteria,amphibians and molluscs.

11. There is currently no scientific evidence to indicate that it can occur naturally in any known species of mammal.

12. Its action in mammals is similar to morphine but is said to be 30-40 times more potent.

13. [D-Arg2] Dermorphin [1-4]-OH is one of over 100 synthetic forms of the substance Dermorphin.

14. There is no licenced form of the drug for use in either humans or animals in New Zealand and there is no known veterinary therapeutic use for the drug in animals in New Zealand.

15. Dermorphin can be purchased via the Internet as a liquid or powder / salt with an approximate price of US$200 for 5mg.

16. As Dermorphin is an opioid analogue, it would normally fall into Category-1 of the GRNZ Prohibited Substances list, i.e. substances that have the ability to negatively impact the performance of a greyhound. However, it could be argued that it actually enhances performance and therefore should be considered a Category-4 substance, ie capable of improving or otherwise impacting the performance of a greyhound.

17. On 16 April the Respondent was interviewed at his property.

18. He could offer no explanation as to the presence of Dermorphin in the dog and stated that ‘Night Howler’ was fed nothing different from his other greyhounds.

19. He stated that the dog had a wrist injury to the stopper bone and was out for 6-7 months (August 2018 – January 2019) while he treated it with vet prescribed ‘Bone Radiol’ liniment and ‘DMSO’ but ceased a month prior to the dogs comeback race.

20. The Respondent has been a licensed trainer for 28 years.

21. He has three previous charges (two different dogs) under GRNZ Rules for presenting a dog positive to Dermorphin in 2018/19.

[7] The RIU had also circulated as part of Disclosure, four Briefs of Evidence. These were from Mr Malcolm Wall, Dr David Palmer, Mr Simon Irving and Dr Malcolm Jansen. Mr Duganzich stated that he had no issue(s) with the Briefs, and did not wish to challenge their contents.

[8] In reference to Dr Jansen’s Brief of Evidence, Mr Irving said that this indicated that it was possible that the analogue of Dermorphin found in Mr Duganzich’s dog could have been due to intestinal bacteria that was present in the dog. However, he suggested that the RIU must proceed on the basis of what is probable, not what is possible; and that a lot of the theory was untested. He went on to state that it was significant that if bacteria could convert to E coli, then it could be possible for bacteria to also produce Dermorphin.

[9] While the RIU recognised that was a possibility, their position was that the onus was on them to only establish that it was probable that the Dermorphin was in the dog’s system, as they could not offer any further evidence to prove Dr Jansen’s opinion.

[10] With reference to NIGHT HOWLER, and the other dogs in Mr Duganzich’s care that had also previously tested positive to Dermorphin (TUNA SPEED and SPOT ON HEARTY), Mr Irving noted that all dogs had an existing previous injury and all had come from the same litter.

[11] Mr Duganzich (Snr) believed there were so many unknown elements to the most recent charge, and that the scientific statements that had been made, as part of the Briefs of Evidence, had not been sufficiently proven. He submitted that there had been a lack of testing around Dermorphin as a substance, that there was so much uncertainty and that any additional testing also came at a financial cost. He did not believe that there had been any evidence produced, and also that there was an unproven theory around the temperature at which testing samples were required to be at, prior to testing.

[12] The Lay Advocate defined Dermorphin as microscopic and that it required protection from light. He refuted any suggestion that his son was responsible for the prohibited substance and questioned why there had been no indication of the level of Dermorphin that was present in the sample. His understanding was that it had to also be injected in order for it to be present in the animal’s system.

[13] The Duganzichs did not believe they had anything to gain by racing a dog with the substance in its system, and with reference to the previous positives for their other dogs, there did not appear to be any particular pattern to the positive results. This was largely due to their dogs being subject to regular testing, and as a result they had stopped racing any dogs since this positive to Dermorphin had been returned.

[14] They did not believe they had presented NIGHT HOWLER to race with the prohibited substance, and stated that it could have possibly occurred at the Kennel Block area at Whanganui. The rationale for adopting that view was a lack of adequate surveillance cameras in operation as a form of protection for trainers at the track. Mr Duganzich also detailed the regime that all of the dogs in his care were subject to, and confirmed that they would never be out in the run area on his property unsupervised. A review of recently installed CCTV footage at the Duganzich property also did not identify any out of the ordinary issues.

[15] Mr Irving advised the hearing that the position of the RIU was never one of alleged injection; as the charge was laid under the presentation provisions, not that of administration. He also understood that NIGHT HOWLER had been transferred to another trainer, and that it had been swabbed one week prior to this hearing; the first time it would have been swabbed since the positive result to Dermorphin. The Respondent’s other dogs had also been voluntarily transferred to another trainer with a small number of dogs also going to Greyhounds as Pets. Mr Duganzich confirmed that he did not currently own any dogs.

[16] Mr Irving accepted that the CCTV footage at the Whanganui Track was antiquated; but that was a matter for the Club to respond to. While the RIU had suggested to the Club that they upgrade the surveillance, that was a budget consideration for them. In response to a question from the Committee, he believed that the fact that all of the Duganzich dogs had returned positives for Dermorphin at the Whanganui track was a coincidence. He submitted that of more significance was that the dogs were siblings, when aligned with the summation in Dr Jansen’s Brief of Evidence. However, he did note that other dogs from the same litter had not tested positive for Dermorphin. Mr Irving did not believe any foul play had occurred in the kennel block area, because he believed Dr Jansen’s view about bacteria was more believable. He did not think the Dermorphin had been introduced by an outdoor source, such as via people who were coming and going in or around the kennel area.

[17] With reference to previous situations where a trainer had not been charged for returning a positive result, the RIU identified the two Australian cases of Burke and Lloyd which had been identified in the earlier Duganzich decision in April 2019. In relation to all codes, Mr Irving identified three examples of trainers who had not been charged: S Doody for Diazepam, K Little for Methamphetamine and K Barron for Ketamine. Further, he submitted that cases where charges had not resulted, were more likely due to the probability that the trainer could not, or should not have known the prohibited substance was in their animal.

[18] Mr Duganzich (Snr) had no further submissions to make, except to indicate that any suggestion they were aware of how the substance came to be in the dog’s system were “crazy”.

REASONS FOR DECISION

[19] This Committee is familiar with the circumstances surrounding Mr Duganzich’s former breaches for the prohibited substance known as Dermorphin, as we were the same Committee that considered those charges. However, we are required to consider the specific evidence placed before us for the current charge in relation to the dog NIGHT HOWLER.

[20] The Briefs of Evidence, with which Mr Duganzich has no issue, simply confirm the process within which the urine sample Number 128914 was collected, packaged, transferred and tested. It is clear that the sample tested positive for Dermorphin. Mr Duganzich does not contest that, or the swabbing process.

[21] He does raise a question as to the actual level of Dermorphin in the sample. While we understand that that may provide some indication to him, for the purposes of this charge, that is largely irrelevant. The presence of the prohibited substance was detected within the sample, and that is sufficient to trigger a non-compliant sample.

[22] While Dr Jansen’s view does raise some interesting conclusions, there is simply a lack of an evidential basis, or research, to support a conclusion which could be defined as a hypothesis at this stage. We also note that Mr Duganzich, while offering up some potential views on how the Dermorphin could have made its way into NIGHT HOWLER’s system, has provided no specific evidence to advance that further.

[23] It is clear that that RIU are alleging presentation rather than administration, so there is no suggestion of any intentional involvement on the part of the Respondent. What we must consider is whether Mr Duganzich presented the dog to race with the substance in its system. The only other alternative suggested by him is that an intentional administration occurred in the kennelling block at Whanganui. In our assessment, there is simply no strong evidence to rely on that. While the CCTV surveillance system at the track may be dated, that alone is not a sufficient factor to support that view.

[24] We find it entirely conceivable that the Respondent is genuinely unaware of how NIGHT HOWLER returned a positive to the prohibited substance, but this is a matter of strict liability and in the absence of any credible evidence to support the submissions advanced by the Respondent, we form the view that the RIU have met the required standard of proof to prove the charge against the Respondent.

DECISION

[25] We find the charge proved.

PENALTY SUBMISSIONS

[26] With reference to previous cases, Mr Irving identified the thoroughbred code case of RIU v K Rae, where no penalty was imposed. The substance in that case was Methamphetamine, although it was established that the circumstances were somewhat different to the current matter. A previous case involving Mr McInerney, where the substance was Lignocaine, resulted in a $3,000 fine, which Mr Irving described as fairly standard for a single positive.

[27] Mr Irving asked the Committee to consider the Category 1 and Category 4 distinction that had been addressed at the previous Duganzich Hearing. He submitted that it was appropriate for the purposes of penalty that this breach be treated as a Category 4 breach, which the Committee had adopted previously.

[28] The submission of the RIU was for somewhere between no penalty being imposed and a fine in the vicinity of $3,000.

[29] In response to a question from the Committee as to whether the current breach could be viewed in a global sense as a continuation of the three previous breaches, and that the source of contamination was still unclear, Mr Irving agreed that would be a pragmatic approach; and that the RIU had no issue with this being treated in that manner.

[30] He also reiterated that no dogs were currently trained by the Respondent, and that since their breaches, TUNA SPEED had tested negative for any prohibited substance, SPOT ON HEARTY was deceased and NIGHT HOWLER had been transitioned to another premises. Mr Irving believed the fact that the Respondent had done something to mitigate any further breaches by moving the dogs on should be viewed in his favour.

[31] Mr Duganzich said they had taken themselves out of the equation by transitioning all of their dogs either to a new trainer or to Greyhounds as Pets so that they could ensure they would not face another charge.

[32] He sought a period of Disqualification rather than a fine; and understood what the implication of a period of disqualification would mean. He stated that it was not their intention to renew their Licences in light of the recent charges, along with an inability to determine the exact source of the contamination.

[33] In seeking a period of Disqualification, Mr Duganzich also asked that such a period also be substituted for the previous three charges, for which the sanction was a $4,000 fine.

[34] In conclusion, Mr Irving identified that if a period of Disqualification was imposed in lieu of a fine, then the RIU would submit a period of three months as appropriate. He also informed the Committee that NIGHT HOWLER had been swabbed at a recent race meeting, but as the results of that swab were not yet available, the Committee may prefer to wait for the results before imposing penalty.

[35] He identified the requirement for the dog to be disqualified from the race in question and said that the RIU were not seeking any costs.

[36] Mr Duganzich had no further submission to make, but agreed that it may be prudent for the Committee to wait for NIGHT HOWLER’s recent swab results to come back before issuing a decision on Penalty.

REASONS FOR PENALTY

[37] At the hearing, the Committee advised that it would reserve its decision on Penalty until NIGHT HOWLER’s most recent swab result was known. The RIU advised Mr Duganzich and the Committee via an email received on 21 June, that the sample obtained from the dog showed no evidence of Dermorphin being present.

[38] The relevant Penalty provisions are contained in Rules 63.1 and 63.4 which state:

Rule 63.1: “Any Person found guilty of an Offence under these Rules shall be liable to:

a. a fine not exceeding $10,000 for any one (1) Offence; and/or

b. Suspension; and/or

c. Disqualification; and/or

d. Warning Off.”

Rule 63.4: “Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.”

[39] It is clear that this has caused much frustration for the Duganzich operation, and they are to be commended for seeking to find an answer as to how the substance has been present in their dogs. In this sense, it is understandable that the Respondent sought to defend the charge; however, the submissions he has made are best placed considerations for the question of penalty, which we have also taken cognisance of.

[40] Mr Duganzich (Snr) has questioned the rationale for having Dermorphin remain as a Category 1 prohibited substance, on the basis that there is so much uncertainty about its form and function within the industry. As identified in our earlier decision, we stated:

“It is not within our purview to amend the definitions identified within the Categorisation system; that is a matter for GRNZ, in consultation with the relevant stakeholders.” (RIU v E Duganzich, Reserved Decision Dated 2 April 2019 at para [29]). 

[41] This Committee maintains that view. In the previous Duganzich decision (lbid., at para [28]) we outlined our approach to the fact that a breach involving Dermorphin was to remain classified as a Category 1 breach, but for the purposes of penalty, we considered it appropriate to adopt the relevant Category 4 starting points. In relation to the current breach, we see no justification to alter our approach from that taken earlier.

[42] This means it remains appropriate for us to look to the starting point identified for a Category 4 substance that potentially enhances the performance of a greyhound; namely a six months Disqualification and/or a $5,000 fine.

[43] The RIU’s submission of no penalty through to a fine in the vicinity of $3,000, is on a broad continuum. We have had regard to that submission along with the suggestion of a three month period of disqualification, if that is the sanction to be imposed.

[44] In RIU v Rae (RIU v K & L Rae and K Williams, 26 November 2018), no penalty was imposed. The Committee in that matter made it clear (lbid., at para [82]) that due to the specific circumstances of that case, the imposition of no penalty should not be viewed as a precedent. Having considered the submissions of both parties, we do not believe imposing no penalty is appropriate in the current matter. Instead we believe a period of Disqualification is the appropriate penalty, and adopt the starting point of six months.

[45] We form the view that given the consistent nature of the Dermorphin offending for the Respondent, it could be considered that the four Duganzich positives could be approached as a singular form of offending over some months. The former breaches for TUNA SPEED and SPOT ON HEARTY occurred on 26 October, 16 November and 28 December 2018. The current breach occurred on 27 March 2019; indicating that all took place within close proximity to each other, with the current one only two days prior to the substantive JCA Hearing for the former charges.

[46] In applying some weight to the approach outlined in the preceding paragraph, we reduce the starting point to a four months period of Disqualification. We consider that this reduction also takes into account the Respondent’s previous record under the Rule; as the Dermorphin breaches are the only ones of this nature over a 28 year period of involvement within the industry.

[47] We identify no aggravating factors to warrant an uplift, but do commend the Respondent on taking what he considers to be necessary steps in transferring the dogs out of his custody in order to safeguard against further Dermorphin breaches. This leads us to an end result of a four months period of Disqualification.

[48] Mr Duganzich has also submitted that the previous $4,000 fine on the former breaches be remitted and replaced with a further period of Disqualification. While we can understand his reason for seeking these, we conclude that such an approach falls outside of the remit of this Committee. While the same Committee has considered all charges, albeit at different times, the Decision dated 2 April 2019 must stand on its own, subject to its own Appeal process which has now lapsed. Therefore, we are unable to interfere with it, and accordingly we decline to do so.

PENALTY

[49] Mr Duganzich is disqualified for a period of four months. In order for the Respondent to facilitate any matters prior to the imposition of the penalty, the disqualification period will commence on 15 July 2019, and will conclude on 15 November 2019.

ORDERS

[50] The provision of Rule 63.4 directs the requirement for the greyhound to be disqualified from the respective race.

[51] The following order is made:

A. That NIGHT HOWLER is disqualified from Race 5 (River City Gas C1) of the Wanganui Greyhound Racing Club’s Meeting on 27 March 2019. Any financial benefits paid, or to be paid, as a result of NIGHT HOWLER’s placing in that race are to be refunded for redistribution in accordance with the amended placings.

COSTS

[52] The RIU do not seek any costs. While some costs have been borne by the JCA, the Committee declines to exercise its discretion to make such an order.

Signed at Palmerston North this 1st day of July 2019.

Mr Tangi Utikere

Chairman

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