You are here: Home / Non race day hearings / Non Raceday Inquiry RIU v G J Anderson - Reserved Decision dated 16 March 2020 - Chair, Prof G Hall

Non Raceday Inquiry RIU v G J Anderson - Reserved Decision dated 16 March 2020 - Chair, Prof G Hall

Created on 18 March 2020

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

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

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND GRAEME JOHN ANDERSON

Licensed Trainer

Respondent

INFORMATION NO: A4827

COMMITTEE: Prof G Hall (Chairman)

Mr P Knowles (Member)

APPEARING: Mr P Meulenbroek, Racing Investigator, for the RIU

The Respondent in person, with the assistance of Mr T Richardson

RESERVED DECISION OF JUDICIAL COMMITTEE

[1] Information No. A4827 alleges that:

On 2 November 2019 Graeme John ANDERSON was the licensed trainer of the standardbred horse BONO BROWN, which was presented for and raced in Race 2 at the Forbury Park TC meeting at Dunedin, when the said standardbred was found to have a prohibited substance in it, namely Cobalt at a level over 100 mcg/litre, in its system, being an offence under the provisions of rr 1004(1A), (3) and punishable pursuant to r 1004(7) of the New Zealand Rules of Harness Racing.

[2] The relevant Rule at the time was r 1004, which stated:

(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) … the trainer of the horse commits a breach of these Rules.

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

(7) Every person who commits a breach of sub-rule … (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.

[3] Rule 1004D(1) states:

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

[4] The Prohibited Substances Regulation 4 states:

The following substances are not prohibited when present at or below the following threshold: 4.11 Cobalt at a concentration at or below 100 micrograms per litre in urine.

[5] The relevant Rule is now r 1004A, but there are no material differences.

[6] Mr Meulenbroek produced written authority from the General Manager of the RIU to lodge the information.

[7] Mr Anderson has admitted the breach.

Summary of facts

[8] There was an agreed summary of facts.

[9] BONO BROWN is a 4-year-old bay gelding trained by Mr Graeme Anderson at Westwood Beach, Dunedin. BONO BROWN is co-owned by Mr Anderson and Mr Sceats. As at 30 November 2019, BONO BROWN had had 4 race starts for a win and two placings.

[10] BONO BROWN was correctly entered and presented by Mr Anderson to race in Race 2, the “NORWOOD FARM MACHINERY CENTRE MOBILE PACE” at the Forbury Park Trotting Club meeting on 2 November 2019. BONO BROWN won the race, winning a stake of $4,000 which has subsequently been forfeit and the horse disqualified.

[11] BONO BROWN was post-race swabbed and a urine sample was taken immediately after it entered the swab box at 1.26 pm in the presence of Ms Stephanie Bransgrove who is Mr Anderson’s wife and also a qualified veterinarian. The sample was recorded with the swab card number 146784. Mr Anderson did not contest the taking of the sample.

[12] On 22 November 2019 Racing Analytical Services Limited accredited laboratory in Victoria, Australia sent a Certificate of Analysis for sample 146784 that showed a result of 128 mcg of Cobalt per litre of urine.

[13] On the 26 November 2019 Eurofins ELS Limited laboratory in Wellington reported an Analytical result that the urine sample number 146784 had returned a Cobalt result of 130 mcg per litre of urine.

[14] Both results are a breach of the New Zealand Rules of Harness Racing which specify that Cobalt is only permitted when present at a concentration at or below 100 micrograms per litre.

[15] On the 28 November 2019 RIU Investigators visited the training stables of Mr Anderson. Mr Anderson was advised of the positive swab result and given a copy of RIU Sample Identity Card 146784, along with copies of the laboratory results reports.

[16] An inspection of the stables area revealed several food sources including Supreme Equine Feed Trainers Mix, Fibre Protect forage fibre and a sack of Summit brand multi mineral Salt Mix.

[17] The Summit brand Salt Mix was being provided to horses at evening meals by way of a small handful, and may have included the day before racing. The Salt Mix indicated Cobalt at a ratio of 65 mg/kg with no prescribed daily limit instruction.

[18] A number of samples were taken from the feed shed and sent to NZ Laboratory Services for analysis, including a further urine sample obtained from BONO BROWN. The result from the urine sample indicated a Cobalt level of 7.2 mcg/litre at 28 November 2019.

[19] Mr Anderson was subsequently interviewed, stating he had absolutely no idea how the horse had returned the excess Cobalt results on 2 November.

[20] Cobalt is an essential trace element required for life through the actions of Vitamin B12 of which Cobalt makes up about 5% of its weight. Cobalt is absorbed from the gut either as elemental or incorporated in Vitamin B12. A horse’s minimum daily requirement is approximately 0.5 mg/kg per day.

[21] In theory an increase in Cobalt creates more red blood cells which means a greater ability to carry oxygen and maintain higher performance levels for longer so boosting endurance. There is however considerable debate that Cobalt has any positive effects on performance and it can cause serious side effects at elevated levels.

[22] From 1 August 2017 the maximum permitted threshold for Cobalt was reduced from 200 mcg/litre to 100 mcg/litre under the Rules of Harness Racing.

[23] Mr Anderson has been involved with harness racing and horse ownership for about 35 years. He has held a trainer’s licence for about 20 years, with 8 horses currently under his control at Westwood Beach stables, Brighton, Dunedin.

[24] In 2013 Mr Anderson was fined $1,250 after a standardbred horse trained by him returned a positive result for the presence of the banned substance, Morphine. In that case the banned substance was ingested via poppy plants growing at the stables that were concealed beneath other foliage near the tie up area. The culpability of the defendant was found to be at the lower end of the scale. On that occasion another trainer was jointly charged and dealt with for the same offence.

[25] Mr Anderson has been fully cooperative throughout.

[26] Mr Anderson stated that he was at a loss to explain the Cobalt positive. He emphasised that the RIU investigators had found nothing incriminating on his property and nothing that was a likely cause of the high level.

[27] Mr Anderson referred to a further horse, SPIRIT OF ST LOUIS, that had returned an elevated reading at about the same time, although this was well under the 100 threshold (32.4 mcg/litre). This led him to conclude that there was a strong possibility of a contaminated salt mix. He said the salt mix he used was one that had been recommended by a prominent local thoroughbred trainer as the best and cheapest salt additive. He purchased it in 25 kg bags and the label said 89.7% salt and 65 mg/kg Cobalt. He gave a small handful to his horses each day and had done nothing different at this time. He questioned whether one or more of the bags he bought at this time could have had a higher amount of Cobalt. He also questioned whether there was a possibility that the truck in which BONO BROWN was floated to the course might have been contaminated.

[28] Mr Anderson described his earlier breach of this Rule as an “indiscretion”. The breach had occurred when he was out of the country and, as he was co-training with Ms Hoffman at the time, he took responsibility. The circumstances were very different, he said, to the case before us.

[29] Mr Anderson referred to the financial loss he had already suffered as a consequence of the positive. He had scratched BONO BROWN from its engagement the next day. He had taken the horse to a veterinarian straight away and the Cobalt reading was 7.2 mcg/litre. Another horse in his stable, DA MOONS MISSION, had raced that week at Oamaru and had won. It had returned a reading of 14.6 mcg/litre. The positive had also led to a sale of BONO BROWN that had been negotiated prior to the test not eventuating. The horse was now spelling.

[30] Mr Anderson also tabled a printout obtained from the RIU of the Cobalt levels of his horses from 18 June 2015 to 15 November 2019. The figures ranged from 128 to 1.3 mcg/litre. With the exception of BONO BROWN and SPIRIT OF ST LOUIS, the levels were all below 13 mcg/litre.

[31] Mr Anderson also emphasised he had no motive to deliberately raise the Cobalt level. The race in question was a $4,000 race at Forbury Park. There were $10,000 races at Invercargill at the time. The horse was $1.60 favourite and the RIU had ascertained there were no unusual bets on BONO BROWN. Mr Meulenbroek confirmed this.

[32] Mr Richardson spoke on behalf of Mr Anderson. He speculated as to whether the high level was due to the horse’s metabolism, contaminated feed or contamination from another source, such as the truck. Both he and Mr Anderson stated that BONO BROWN did get quite worked up at the races.

Penalty submissions

[33] The Informant submitted that a starting point of a fine of $8,000 be considered.

[34] He stated penalties were designed to punish the offender for his/her wrong doing. In a racing context it was extremely important that the penalty had the effect of deterring others from committing similar offences and it should also reflect the disapproval of the JCA for the type of behaviour in question.

[35] Four previous decisions were viewed as being of some assistance:

RIU v R Brosnan (February 2018 Harness) – 3 horses found with excessive Cobalt readings (136 mcg, 128 mcg, 522 mcg). Vials and syringes present at stables with Cobalt contained within. First offence – fined $19,200 for the 3 offences. RIU v G Dixon (April 2018 Harness) – 1 horse with excessive Cobalt (293 mcg) – several supplements at stables. First offence – fined $6,500.

RIU v S Hale (September 2018 Harness) – 1 horse with excessive Cobalt (120 mcg) – salt mix supplement likely culprit. First offence – fined $4,000.

RIU v C Dalgety (May 2017 Harness) – 5 horses excess Cobalt (584 mcg, 600+, 250, 300, 245) – limit at time was 200 mcg/litre – salt mix supplement – high to mid-level of culpability – two prior offences – fined $32,000 for the 5 offences.

[36] The Informant identified that this was a second charge for Mr Anderson involving the presentation of a horse with a prohibited substance. The prior matter had occurred in 2013 and involved a different substance, Morphine. That breach was considerably different in nature to the one currently before the Committee, however.

[37] There had been much publicity and discussion about Cobalt in both the Harness and Thoroughbred codes in New Zealand and Australia in recent years which should have put all licensed persons on notice. Trainers should be alert to the risks that necessarily could arise from accidental exposure to excessive Cobalt. When using commercially supplied substances that are labelled as containing substances which are prohibited at certain thresholds, as is the case with Cobalt, it was incumbent upon trainers to ensure that they were used only in such quantities as to remain below the permitted levels. If necessary, trainers should seek independent veterinary advice and testing.

[38] There was nothing present at the stables to suggest that the excessive Cobalt was the result of any injected or administered substance. In fact, there were no treatments or additives other than a salt lick mix found anywhere within the stables complex.

[39] Cobalt is a naturally occurring substance and horses may excrete excess Cobalt differently.

[40] Mr Anderson accepted the results of the testing and had been fully cooperative throughout the investigation. He had admitted guilt and liability at the first available opportunity, despite having no claimed knowledge of how the high level of Cobalt came to be present in his horse.

[41] Mr Anderson has an extensive history of involvement within the Harness Industry over 35 years with just one prior matter that was at the lower end of the scale of offending. On that occasion both he and another trainer were charged, with Mr Anderson being away overseas when it occurred. The RIU considered the breach had been totally accidental and could be difficult to prevent.

[42] The level of 128 mcg/litre was considered to be at the mid to lower end of the scale in terms of seriousness. Prior to August 2017 the threshold permitted for Cobalt was 200 mcg/litre. Due to the low Cobalt reading, there were no adverse animal welfare issues that needed to be considered.

[43] The RIU submitted that the breach could be dealt with by way of a monetary penalty and that the level of aggravation related to this being a second offence was at a mid to low level. The RIU submitted a starting point of a fine of $8,000 was appropriate.

[44] The RIU did not seek costs.

[45] Mr Anderson responded by reiterating that he had admitted the breach only because it was one of absolute liability. He was at a loss to explain the reading. The only explanation in his mind was contaminated feed. He asked that we take into account, when determining the amount of the fine, the loss of stake money on the night, the withdrawal of the horse from its forthcoming engagement, and the loss of the impending sale.

[46] Mr Anderson also tabled a number of positive character references.

Decision

[47] Mr Anderson is unable to explain the level of Cobalt returned by BONO BROWN. We note that it is not markedly above the cut-off point and, as Mr Anderson has emphasised, is less than the level of 200 mcg/litre that pertained prior to 1 August 2017. We note the relevant Rule, r 1004(4), provides that a breach of r 1004(1A) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse. The case of Justice v HRNZ [2012] NZHC 3484 held that the Rule is one of absolute liability.

[48] SPIRIT OF ST LOUIS returned a level of 33 mcg/litre around the same time as the elevated level of BONO BROWN. This gives some credence to the respondent’s claim that the bag or bags of salt mix that he purchased at that time were contaminated. But we impose penalty on the basis that the reason for the elevated level is not known.

[49] Mr Anderson has a previous breach of this Rule. The breach occurred when he was out of the country and when he was co-training with Ms Hoffman. It was the result of horses ingesting opium poppies which, unbeknown to the respondents in that case, were in overgrown foliage near where the horses were tied up. The circumstances of that case are very different and whilst it cannot be ignored completely, we do not believe it merits significant emphasis. We observe that the RIU are of a similar view.

[50] The JCA Penalty Guide provides an $8,000 starting point for a first breach of the presentation Rule, and a two-year disqualification and a fine of up to $10,000 for a second breach. The RIU does not seek a disqualification in this case and we agree disqualification is not an appropriate penalty.

[51] In assessing the appropriate starting point regard is to be had to the gravity of the breach and the culpability of the person charged. The RIU identified previous cases under this Rule and has agreed with the Committee that the case of Hale is the most relevant. The fine in that case was $4,000. There was evidence of negligence on Mr Hale’s part. The source of the Cobalt was believed to be a salt block that was not manufactured specifically for horses (or racehorses) to which the horse in question had unrestricted access. The respondent had failed to read the ingredients in the multivitamin salt block and had made no inquiries as to the amount of Cobalt in the block.

[52] The situation with BONO BROWN is similar, except there is no salt block but rather a salt mix. The amount of Cobalt in the mix is displayed on the bag, which we understand states it is appropriate for all classes of animals, including horses. However, again there is no reference to racehorses. Mr Anderson appears to have relied on this labelling although we note he also took the advice of a prominent thoroughbred trainer. He is adamant that all his horses are only given one small handful of the salt mix daily. In those circumstances, it is difficult to see how BONO BROWN returned the positive. We also note the RIU’s concession that the level of 128 mcg/litre does not create an animal welfare issue.

[53] In imposing penalty we have regard to the need to maintain the integrity of and public confidence in Harness Racing by imposing a penalty that holds the respondent accountable and deters him and others from future breaches of the Rule.

[54] In Hale both the Judicial Committee and the Appeals Tribunal adopted a starting point of a fine of $6,000. The Committee reasoned that the $8,000 starting point in the Penalty Guide was for a mid-range breach of the Rule, whereas Mr Hales’ breach was low range, with the level being 120 mcg/litre.

[55] The level in Hale is very similar to that in this case. Both are low end. We take guidance from the starting point (and the penalty imposed) in that case. However, this is Mr Anderson’s second breach, whereas it was Mr Hale’s first. We do not place undue weight on Mr Anderson’s previous breach because, as we have previously observed, the circumstances are very different. We take a starting point of $7,000.

[56] Mr Hale admitted the breach and co-operated with the RIU. These mitigating factors also apply to Mr Anderson.

[57] Mr Anderson has submitted that we should take into account that he has lost half the winning stake on the night as he is a co-owner of BONO BROWN, the horse was immediately withdrawn from its forthcoming engagement once the elevated reading was known, and the loss of the horse’s impending sale, which did not eventuate because of the positive result. We accept that Mr Anderson has suffered some financial loss, but do not believe this merits a significant reduction in the fine that is otherwise appropriate. But it merits some weight and is considered in the round.

[58] Mr Anderson has had a long and successful career in the industry. He has produced a number of testimonials vouching for his good character. This is a personal mitigating factor, particularly when viewed in the context of the source of the elevated level not being known. We note also that nothing at all untoward was found on his property when it was inspected by the RIU investigators.

[59] Mr Anderson is fined the sum of $5,000.

[60] In our decision of 6 December last we ruled pursuant to r 1004D(1) that BONO BROWN was disqualified from race 2 at the Forbury Park TC meeting on 2 November 2019. There is no need to address this matter further.

[61] The RIU do not seek costs and there is no order in favour of the JCA.

Dated at Dunedin this 16th day of March 2020.

Geoff Hall, Chairman

Document Actions