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Non Raceday Inquiry RIU v J M Luxton - Reserved Penalty Decision dated 20 January 2020 - Chair, Mr R G McKenzie

Created on 30 January 2020

BEFORE A JUDICIAL COMMITTEE

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT RANGIORA

IN THE MATTER of the New Zealand Thoroughbred Racing Rules of Racing

IN THE MATTER of Information No. A7233

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND JOHN MALDEN LUXTON of Christchurch, Holder of Permit to Train (Class B)

Respondent

Judicial Committee: Mr R G McKenzie (Chair)

Mr S C Ching (Member)

Venue: Rangiora Racecourse, Rangiora

Present: Mrs K R Williams, the Informant

Mr J M Luxton, the Respondent

Date of Hearing: 22 December 2019

Date of Decision: 20 January 2020

RESERVED PENALTY DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Mr Luxton is charged that, at a race meeting conducted by Canterbury Racing at Riccarton Park on Saturday, 16 November 2019, as the licensed trainer of the thoroughbred racehorse, PAMIR, an acceptor for Race 9, Christchurch Casino 156th New Zealand Cup:

(i) He had in his possession a syringe which could be used to administer a prohibited substance to a horse, in breach of rule 804(4); and

(ii) He administered a substance by injection to a horse entered in a race on that day of racing, in breach of Rule 804(5)

[2] Mrs Williams produced a letter dated 18 December 2019, signed by Mr M R Godber, General Manager of the Racing Integrity Unit authorising the filing of the Information pursuant to rule 903(2)(d).

[3] The Information had been served on Mr Luxton on 19 December 2019. He had signed the Information form and indicated that he admitted the charge under (i) above but that he denied the charge under (ii) above.

[4] The Charges and the Rules were read to Mr Luxton at the commencement of the hearing. He confirmed that he understood the Charges and the Rules and he confirmed his pleas to the charges as set out in para [3].

[5] The hearing proceeded by way of a defended hearing in respect of the alleged breach of rule 804(5).

The Rules

[6] Rule 804 of the Thoroughbred Racing New Zealand Rules of Racing provides as follows:

(4) A person shall not have in his or her possession on a Racecourse or similar racing facility, where a Race Meeting is being conducted or trials to which the Third Appendix hereto applies, a Prohibited Substance, syringe, needle, device or other instrument which could be used to administer a Prohibited Substance to a horse unless that person shall have first the permission of the Stipendiary Steward or Investigator to be in possession or satisfies them that such possession is for his lawful use.

(5) A person, except for a person who is a Veterinarian who is an official, shall not, during a day of racing, administer by injection, nasal gastric tube, ventilator or nebulizer to a horse entered in a Race, or trial to which the Third Appendix applies, on that day of racing any substance whatsoever, unless such administration occurred after the horse has raced or under the direction of Stipendiary Steward or Investigator. For the purposes of this sub-Rule the day of racing is deemed to commence at 12.01am and to conclude after the last Race.

Evidence for the Informant

[7] Mrs Williams presented the following statement to the hearing:

1. Mr Luxton was observed using a syringe to administer a substance to PAMIR in the stabling area at 3.20pm which was entered in Race 9 (4.20pm), the Christchurch Casino 156th New Zealand Cup at the Canterbury Jockey Club Meeting on 16th November 2019.

2. Mr Luxton had the syringe in the horse’s mouth and was observed by both Racing Investigator, Kylie Williams and on-course Veterinarian, Jessica Fuller.

3. Mr Luxton was told to stop as he was not permitted to use a syringe on a racecourse on raceday.

4. Mr Luxton proceeded to squirt the liquid into the horse’s mouth.

5. Mr Luxton advised that it was only water in the syringe.

6. The syringe used was a “B Boost” syringe and was very obviously labelled as such. This product is used by a lot of trainers and any that use the product would immediately recognise the syringe as it is bright red and Mr Luxton was using it in clear view of participants in the stabling area. The perception of using a labelled syringe will be that it is the product that is advertised that is being given to the horse.

7. The syringe was confiscated off Mr Luxton and he was advised to report to the Stipendiary Stewards room in 10 minutes.

8. Mr Luxton was questioned by the Stipendiary Stewards and an Information, A11550, was lodged with the JCA requesting a ruling “as to whether PAMIR (trained by Mr Luxton) is permitted to start after being given a substance in the stable area on race day”.

9. The Committee’s ruling, after a hearing at which Mr Luxton was present, confirmed the exercise of the Stewards’ discretion that the horse, PAMIR, owned and trained by Mr Luxton, should be a late scratching in Race 9.

10. The syringe was forwarded to the New Zealand Racing Laboratory for analysis and they reported on 16 December 2019 that no prohibited substances were detected in the syringe.

11. Mr Luxton has been licensed as a trainer since 1997 and has trained 9 winners and has not been charged with a breach of this Rule.

Evidence of Jessica Fuller

[8] Ms Fuller said that she was the on-course Veterinarian at the meeting of Canterbury Jockey Club on Saturday, 16 November 2019. She was assisting Mrs Williams in taking pre-race blood samples at the meeting.

[9] She stated that, passing the stall of PAMIR, she heard Mrs Williams call “Stop” to Mr Luxton who was with the horse at the stall. Mrs Williams walked over to Mr Luxton, who had a syringe in his hand and was depressing the plunger of that syringe into the mouth of the horse. Mrs Williams told Mr Luxton that nothing could be administered to a horse on raceday. Mrs Williams then confiscated the syringe and took it to the Stipendiary Stewards.

[10] When Mrs Williams had said to Mr Luxton to stop, Mr Luxton still had the syringe in the horse’s mouth and she saw the horse licking, Ms Fuller said. That indicated that the horse had had something put into its mouth. She saw him push the plunger.

[11] She had heard Mr Luxton say that it was only water but did not recall him giving any explanation of what he was doing.

Submissions of Respondent

[12] Mr Luxton had quite vigorously and at length cross-examined both Mrs Williams and Ms Fuller on their evidence to the Committee.

[13] Mr Luxton said that he did not deny that there was water in the syringe, but he argued that he had not injected it into the horse’s mouth. He said that it had not been proved that any substance had been injected into the horse’s mouth. He submitted that Mrs Williams and Ms Fuller could not have seen what they claimed to have seen, with himself and his son standing with the horse.

[14] The Committee told Mr Luxton that it had heard the evidence of the two witnesses for the Informant, that it had noted his denial of the allegation that he had he had inserted a substance into the horse’s mouth by way of a syringe and that it was for the Committee to weigh up that evidence in determining whether the Informant had proved her allegation in the face of his denial.

[15] Mr Luxton then sought leave to change his plea and admit the charge of administration – Rule 804(5).

Decision

[16] Mr Luxton having originally admitted the charge under Rule 804(4) and having changed his plea in respect of the charge under Rule 804(5) at the end of the defended hearing and admitted that charge also, both charges are found proved.

Informant’s Penalty Submissions

[17] Mrs Williams presented the following submissions in relation to penalty:

1. Mr Luxton has pleaded guilty to breaches of Rules 804(4) and 804(5) after he used a syringe to administer a substance to PAMIR in the stabling area at 3.20pm which was entered in Race 9 (4.20pm), the Christchurch Casino 156th New Zealand Cup (Group 3) at the Canterbury Jockey Club meeting on 16th November 2019.

2. The penalty provisions that apply in this case are outlined in Rule 804(7).

804(7) A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be liable to:

(a) be disqualified for a period not exceeding five years; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $25,000.

3. Relevant Precedents –

RIU v M Smolenski - 16 January 2012 - Harness

Subject: Three charges of injecting three horses on raceday with Osmitrol - $3,600 fine.

RIU v J Clementson - 20 May 2007 - Harness

Subject: Administering substance at the races - Disqualified for 4 months and fined $3,600 fine. Appealed - Disqualified 4 months and fined $2,500

Extract from decision: “During the hearing it was established that there were (amongst others) two relevant different meanings that could be attributed to the word "injection". The definition of this word in veterinary terms clearly limits the act to an injection with a syringe and needle. The dictionary meaning is much wider, and would include driving or forcing a fluid into a passage, cavity, or solid material under pressure. On behalf of HRNZ Mr Lange submitted that the wider dictionary meaning should be applied….. We have given this matter careful consideration and prefer the interpretation given by Mr Lange on behalf of HRNZ. Our reasons for this decision are as follows.

■ The Rules of Harness Racing are not written for Veterinarians, but are for the guidance of trainers, drivers, owners and other persons involved in harness racing.

■ In particular Rule 1004(6) describes things that a trainer would do to treat a horse, and it is not written in veterinary terms.

■ We also agree with Mr Lange that it would be absurd if a trainer could lawfully administer a substance down the throat of a horse with a syringe without a needle attached, but would be breaching the Rule if a needle was attached to that syringe.”

RIU v L Stewart –18 December 2015 - Thoroughbreds

Subject: Used Arnica via product “Cool N Tite” on raceday - fined $650.

RIU v P Lock –25 March 2013 - Thoroughbreds

Subject: Administered substance by Syringe (Glycerine) prior to race - fined $750.

Extract from decision: “The Integrity of Racing is paramount and all participants in the Racing Industry need to always be aware of this. An industry that is reliant upon the gambling dollar needs to always uphold its Integrity to retain the Public’s confidence.

In dealing with integrity issues it is important for all those involved in the Racing Industry to be aware of how important “perception” is. In this case we are told by Mr Molloy that the substance was only glycerine and we are told by Mr Oatham that analysis of the sample was reported as negative. The important point to us, however, is that if a member of the public or for that matter other trainers saw Mr Lock squirting something into his horse’s mouth on raceday then the perception would be that he was doing something sinister.”

RIU v D Walker –11 December 2013 - Thoroughbreds

Subject: attempting to administer "Windaid" by syringe prior to Group 3 race - fined $1000.

Extract from decision: “The aggravating facts in accordance with Rule 920 (2) which this Committee must have regard for are as follows: (a) the status of the race in which it was a Group 3 event, (b) the stake payable in respect of the race, this breach occurred in a $70,000 race (c) any consequential effects upon any person or horse as a result of the breach of the Rule, the Club and TAB turnover of the race was effected as POSTMANS DAUGHTER was a favoured runner in the race (d) the need to maintain integrity and public confidence in racing, which is paramount and the perception in this case has been detrimental to the image of racing.”

RIU v N Robinson –10 April 2010 - Thoroughbreds

Subject: Administered substance (Finish Line) prior to race - fined $750.

RIU v D Nunn – 28 May 2009 - Thoroughbred

Subject: One charge of administering boost on Raceday - $750 fine.

4. Aggravating Features –

Mr Luxton was told to stop when observed having the syringe in the horse’s mouth and he failed to do so.

The syringe used was a “B Boost” syringe and was very obviously labelled as such. This product is used by a lot of trainers and any that use the product would immediately recognise the syringe as it is bright red and Mr Luxton was using it in clear view of participants in the stabling area. The perception of using a labelled syringe will be that it is the product that is advertised that is being given to the horse. Although Mr Luxton maintained that there was only water in the syringe this could not and was not required to be proved on the day. Note Rule 804(10).

804(10) If, in a proceeding in which any breach of this Rule or of Rule 801(1)(n) is alleged, it is proved that:

(a) a horse has had administered to it an article, substance or liquid; or

(b) before being administered to the horse the article, substance or liquid was contained in a bottle or other container it shall be presumed until the contrary is shown that the article, substance or liquid contained, at the time of administration, as a minimum those ingredients specified in any label which it is proved:

(i) was at the time of administration on the bottle or other container; or

(ii) was at the time of sale usually on the bottle or other container which that article, substance or liquid was customarily sold.

5. Mitigating Factors –

Mr Luxton admitted the breach to one of the Rules at the first opportunity.

Mr Luxton made a payment of $3,874.08 to be in the race which the Club retains. Mr Luxton as the owner and trainer of the horse lost the opportunity to win any stakes after being scratched from the event. Stakes were paid to the first ten placegetters with those placed 6th to 10th earning $3,000.

6. Conclusion –

The Racing Integrity Unit request that the JCA balance the aggravating factors against the mitigating when determining a penalty. The status of the race also needs to be taken into consideration as this was prior to the Christchurch Casino 156th New Zealand Cup, a Group 3, $250,000 race. The listed precedents are an indication of penalties imposed in the past and one of the offences was prior to a Group 3 race also but with the lesser stake of $70,000.

The RIU seeks a penalty of a fine of $750 - $1,000. Had the substance used been different then we would be seeking a more substantial fine.

Respondent’s Penalty Submissions

[18] The Committee gave Mr Luxton the period to 7 January 2020 to prepare and file his penalty submissions with the Executive Officer of the Judicial Control Authority.

[19] On 8 January 2020, Mr Luxton advised the Executive Officer that he did not wish to file any penalty submissions.

Reasons for Penalty

[20] Mr Luxton faces two charges in relation to an incident at the meeting of Canterbury Jockey Club at Riccarton Park on 16 November 2019.

[21] Mr Luxton is the trainer of the thoroughbred racehorse, PAMIR, which had accepted for Race 9, Christchurch Casino 156th New Zealand Cup, a Group III race for a stake of $250,000.

[22] The breach of Rule 804(4) (being in possession of a syringe) was admitted by Mr Luxton at the outset, but he elected to defend the charge of administration under Rule 804(5).

[23] His decision to deny the charge of administration was rather baffling since, at the hearing of the request for a ruling on the raceday, he is on record as having said that he had used the syringe, which contained only water, as PAMIR had sweated a bit and would not drink.

[24] The decision of the raceday Judicial Committee records:

Mr Luxton disputed that the equipment used on the horse was not a syringe. He confirmed that it contained only water. The horse sweated a bit and would not drink and that is why he used the syringe, he said.

And later in its decision the Judicial Committee stated:

We heard evidence from Racing Investigator, Mrs K R Williams, that she had observed, in the stabling area, Mr Luxton administer a substance into the mouth of the horse. Mr Luxton admitted he had done so but asserted that the syringe contained only water.

[25] Mrs Williams and Veterinary Surgeon, Ms Jessica Fuller, gave compelling evidence of having seen Mr Luxton place the syringe in the mouth of the horse and clearly depress the plunger. Mr Luxton attempted to argue that they could not have both seen this and, in any event, there was no proof that the syringe contained any substance.

[26] Mr Luxton eventually, and in the face of overwhelming evidence, admitted that he had used the syringe to inject a quantity of water into the mouth of PAMIR which, as we have earlier stated, he had admitted to at the raceday hearing.

[27] The Committee does not believe that there was anything sinister in Mr Luxton’s actions on the raceday. It is likely that he was unaware that, in syringing water into the horse’s mouth by means of the “B-Boost” syringe, he was committing a breach of the Rules. The raison d’etre for the Rule is obvious. To quote from the Lock decision referred to in the Informant’s submissions:

An industry that is reliant upon the gambling dollar needs to always uphold its integrity. In dealing with integrity issues it is important for all those involved in the Racing Industry to be aware of how important “perception” is . . . The important point to us, however, is that if a member of the public or for that matter other trainers saw Mr Lock squirting something into his horse’s mouth on raceday then the perception would be that he was doing something sinister.

[28] Mr Luxton was quite entitled to put the Informant to the test of proving the allegation, even though he had admitted the wrongdoing at the raceday hearing. However, the evidence of the Informant was compelling and, realising that, Mr Luxton changed his plea at a very late stage of the hearing.

[29] Of course, it transpired that, from a subsequent analysis of its contents, there was no prohibited substance in the syringe. The offending needs to be kept in perspective.

[30] Mrs Williams referred the Committee to a number of earlier cases involving administration on raceday. The penalties in the relevant cases, all fines, ranged from $650 to $1,000. Those cases are all older. The Committee has taken, as a starting point for penalty, a fine of $1,000, being the highest figure of that range. An aggravating factor is the status of the race (Group 3) and the stake payable ($250,000) – one of New Zealand’s premier staying races – for which we uplift the starting point to $1,200.

[31] The Committee does not have the benefit of any penalty submissions from Mr Luxton. The LoveRacing website shows Mr Luxton as having trained 158 runners since first being licensed in the 1997/98 season. He has no previous breaches of either Rule. His record is a mitigating factor, but we cannot give any credit for his last-minute recantation. For his previous good record, we are able to give Mr Luxton a discount from the starting point of $200.

Penalty

[32] Mr Luxton is fined the sum of $1,000.

Costs

[33] No order for costs was sought by the Informant. Although the hearing took place on a raceday, the JCA did incur some costs in relation to the hearing, having to convene a Judicial Committee at short notice and have a Committee member travel to the hearing venue. Mr Luxton is ordered to pay a contribution to the hearing costs of the JCA in the sum of $250.

R G McKenzie

(Chair)

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