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Non Raceday Inquiry RIU v G Richardson and G Parker - Decision dated 13 July 2018 - Chair, Mr M McKechnie

Created on 17 July 2018

BEFORE A NON-RACEDAY JUDICIAL

COMMITTEE OF THE JUDICIAL CONTROL

AUTHORITY UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Racing Rules

BETWEEN THE RACING INTEGRITY UNIT (RIU)

INFORMANT

AND GRAHAM RICHARDSON and GAVIN PARKER, Licensed trainers

RESPONDENTS

Non-Raceday Judicial Committee: Mr Murray McKechnie, Chairman & Mr Noel McCutcheon

Present: Mr Andy Cruickshank, Racing Investigator representing the Racing Integrity Unit

Mr Alan Galbraith QC representing Messrs Richardson and Parker

Mr Graham Richardson

Mr Gavin Parker

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

DATED THIS 13th DAY OF JULY 2018

1. THE CHARGE

1.1 Messrs Richardson and Parker train in partnership at Matamata. They are charged with a breach of New Zealand Thoroughbred Racing Rule 804(2).

1.2 The charge arises from events that occurred on the 10th March 2018. On that day the mare WILD FLOWER was entered in the Barfoot & Thomson Auckland Cup at the Auckland Racing Club Meeting at Ellerslie. WILD FLOWER finished third in the race and was entitled to a stake of $42,500.00. After the race WILD FLOWER underwent a post-race urine test. This urine test established that there was a cobalt level of 198 milligrams per litre of urine. The quantitive level permitted under the rule must not exceed 100 milligrams.

2. THE PLEA

2.1 Mr Galbraith who is a senior counsel and vastly experienced in racing matters advised the Committee at the time of a judicial telephone conference on the 13th day of June that he would obtain instructions from Messrs Richardson and Parker as soon as he was able. At that time Mr Richardson had commitments in Queensland. Soon after that minute was issued advice was received from Mr Galbraith that both Messrs Richardson and Parker would admit the charge.

3. RELEVANT CIRCUMSTANCES

3.1 The material gathered by Mr Cruickshank on behalf of the RIU and acknowledged by Messrs Richardson and Parker is that WILD FLOWER was receiving supplements namely Vet Pro Equine Athlete B Boost and Vet Pro Equine Athlete Quick-Lyte supplements. The material put before the Committee establishes that these supplements were made available upon the express recommendation of the well-known Matamata veterinary practice Marks & Ewen. The Committee has been furnished with a letter from Mr Ewen.

3.2 Messrs Richardson and Parker told the Committee that the supplements were administered in accordance with the advice that they received from the veterinarian and not at any greater level than had been advised.

3.3 The supplements contain a measure of cobalt. In Vitamin B12 cobalt makes up about 5% of the weight of the supplement that is administered.

3.4 Since WILD FLOWER tested positive inquiries have established that on the 10th day of February this year at Te Rapa the mare ran in the Herbie Dyke Stakes. She was subsequently required to undertake a urine test and a cobalt reading was returned of 73.7/100. Mr Richardson told the Committee – and we have accepted his advice – that he was not advised of this reading. The level returned one month later on the 10th day of March following the running of the Auckland Cup was 198/100. More will be said of the reading on the 10th day of February later in this decision.

4. THE POSITION OF THE RIU

4.1 Mr Cruickshank has filed detailed submissions. These draw attention to a number of decided cases both in thoroughbred racing and in harness racing. The submissions point to the aggravating and mitigating circumstances. It is said that an aggravating circumstance is that this was a Premier Group 1 race. The Committee does not accept that the status of the race is of itself an aggravating consideration. It is accepted that in some circumstances the status of the race can be an aggravating circumstance particularly where the conduct of a jockey is in question. In the view of the Committee the presentation of a horse with an unlawful cobalt level is equally serious no matter what the status of the race.

4.2 Mr Cruickshank very fairly points to the mitigating circumstances. First that Messrs Richardson and Parker pleaded guilty at the first reasonable opportunity. Secondly that both have entirely unblemished records. Mr Richardson has been training for more than two (2) decades. His deserved reputation is well-known to the Committee. In more recent times he has been joined in partnership by Mr Parker who was formerly in a senior position in the stable and he too has an unblemished record.

4.3 Pointing in particular to the case of RIU v Bambry Mr Cruickshank for the RIU submitted that a fine of $11,000 would be appropriate. The RIU does not seek a costs award in its favour but does seek reimbursement of the costs incurred in testing the samples.

5. POSITION TAKEN FOR MESSRS RICHARDSON AND PARKER

5.1 Mr Galbraith emphasised the hitherto entirely unblemished record of his clients. He made reference to the difficulty in establishing just how the cobalt level in WILD FLOWER came to be so high. This with particular reference to other tests undertaken with horses in the stable where there were no results approaching the level returned by WILD FLOWER following the Herbie Dyke Stakes at Te Rapa on the 10th day of February and the Auckland Cup at Ellerslie on the 10th day of March 2018.

5.2 Mr Galbraith drew attention to the fact that there is some division of equine and scientific opinion as to whether or not cobalt does enhance the performance of a thoroughbred horse. It is not for the Committee to comment on that in as much as the rule is in place fixing the level at 100 micrograms per litre. The Committee must take the rules as they are. There has been a great deal of publicity about cobalt both in New Zealand and Australia in recent years and all trainers particularly at the senior level of Messrs Richardson and Parker would have been aware that cobalt was something that was very much on the radar.

5.3 Mr Galbraith also drew attention to the difficulty in establishing just what is the precise relationship between organic and inorganic cobalt. Again there appears to be some difference of scientific opinion.

5.4 It is not for the Committee to try and establish how WILD FLOWER came to have the cobalt level revealed following the race on the 10th day of March. What might be an explanation is a particular metabolism which this horse has which makes it somewhat unique in being unable to shed cobalt from its system as most other horses – something in excess of 90% we were told – are able to do.

5.5 Mr Galbraith stressed that there was nothing in the conduct of Messrs Richardson and Parker which brought about the excessive cobalt level and that they were taken completely by surprise. He submitted that a modest fine would be appropriate.

6. DISCUSSION

6.1 The Committee asked questions of Mr Cruickshank about the cobalt level returned by WILD FLOWER following the running of Herbie Dyke Stakes at Te Rapa on the 10th day of February this year. As noted above the level returned was 73.7. Mr Cruickshank acknowledged that the RIU did not advise Messrs Richardson and Parker of this level. What is said here on this subject is no criticism of Mr Cruickshank. The Committee however takes the view that there should be a policy in place at the RIU which alerts trainers when levels of prohibited substances are at a level which might indicate the possibility of some breach. Mr Cruickshank told the Committee that he had discussed this issue with the leading equine veterinarian Dr Andrew Grierson. Mr Cruickshank advised that Dr Grierson indicated that when the cobalt level in a horse reached somewhere around 15 micrograms that was a “warning time”. Dr Grierson, who is well known to the Committee, is a highly respected veterinarian and this Committee would urge the RIU to act upon the advice of Dr Grierson in as much as it might put in place a policy whereby trainers are made aware of levels of cobalt or for that matter other prohibited substances which are giving what Dr Grierson described as “a warning”. At what level that is fixed is not for this Committee to say but it is recorded that Dr Grierson fixes a figure at around 15 micrograms per litre.

6.2 In considering the appropriate level of penalty to be imposed here the Committee has had particular regard to the decision in RIU v Bambry. In that case the licenced holder knew of the existence of cobalt in the food which was being provided and moreover the decision makes plain that the operation of the stable was less than satisfactory. In the Committee’s view the offending in that case was at a higher level than is the case here.

6.3 The cases from harness racing are of some assistance but it is the Committee’s view that consistency within the thoroughbred code is of particular significance.

6.4 The highly publicised decision in RIU v O’Sullivan & Scott is of limited assistance. It was nonetheless right for Mr Cruickshank to put that decision before the Committee. The case received a great deal of publicity and the Committee is well acquainted with it. The circumstances there were quite different from the circumstances here and limited assistance can be gained from what was said in that decision.

7. DECISION ON PENALTY

7.1 The Committee considers that there should be a significant discount for Messrs Richardson and Parker. This is based upon two (2) considerations. The first is the prompt plea of guilty. It is a recognised sentencing principle that such a plea, if made at an early stage, is to be recognised. The second consideration is the outstanding record of Messrs Richardson and Parker which was noted above.

7.2 If a starting point for the penalty to be imposed were somewhere between $10,000 and $12,000 which in the Committee’s view is an appropriate starting point then factoring in of the discounts spoken of above leads the Committee to the view that an appropriate fine is in the sum of $6,000 and that is the fine which will be imposed.

7.3 Messrs Richardson and Parker will be required to pay some contribution towards the costs of the JCA for assembling and conducting this hearing today. The costs to be paid to the JCA will be in the sum of $2,000. As noted above the RIU does not seek any costs award. It does however seek reimbursement of the costs of testing the samples taken from WILD FLOWER and those figures are $852.60 in respect of the testing of the sample in Perth and the sum of $534.49 in respect of the Chem Centre data pack costs of provision of information.

7.4 The Committee noted that Mr Galbraith expressly made reference to Mr Cruickshank’s cooperation and assistance throughout particularly in assisting with the testing of other horses in the stable. That testing as was noted above demonstrated the very curious position of WILD FLOWER when compared with other horses in the stable.

8. DISQUALIFICATION

8.1 Under Rule 804(8) it is necessary to order the disqualification of WILD FLOWER from Race 9 at Ellerslie on the 10th day of March 2018 and an order is made accordingly. It follows that all of those horses that finished behind WILD FLOWER in that race will move one (1) forward. It follows from the disqualification that the stake money to which the connections of WILD FLOWER would otherwise have been entitled is forfeit.

Dated this 13th day of July 2018

Murray McKechnie

Chairman

Signed pursuant to Rule 1007(5)

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