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Non Raceday Inquiry RIU v J Richards - Written Decision dated 4 March 2021 - Chair, Mr N McCutcheon

Created on 05 March 2021

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY UNDER THE RACING ACT 2003

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

BETWEEN Mr A Cruickshank of The Racing Integrity Unit (RIU)

Informant

AND Mr J Richards, Licensed Trainer

Respondent

Information No: A8721

Charge: Admitted

Judicial Committee: Mr N McCutcheon (Chairman)

Mr B Scott (Member)

Present: Mr J Richards, Respondent

Mr A Cruickshank, Informant

Mr D Ellis (Principal Te Akau Racing)

Venue: Matamata Racecourse

Date of Oral Decision: 27 February 2021

Date of Written Decision: 4 March 2021

DECISION OF JUDICIAL COMMITTEE

The Charge

1. Information No A8721, filed by Racing Investigator, Mr A Cruickshank, alleges that Mr Richards being the registered trainer for the time being in charge of the 4 year old Mare ‘Vamos Bebe’, which was brought to the Auckland Racing Club meeting held on 26 December 2020 at Ellerslie for the purpose of engaging in, and did engage in Race 5 the Hallmark Stud Handicap, when the said horse was found to have in its metabolism a Prohibited Substance, namely Morphine in breach of New Zealand Thoroughbred Racing Rule 804(2).

2. A letter from Mr MR Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 903(2)(d), authorising the filing of the Information. The Information was served on Mr Richards on 16 February 2021.

3. The Charge and Rules were read to Mr Richards at the commencement of the hearing. He confirmed that he understood both and that he admitted the Charge.

Summary of Facts

4. Mr Cruickshank presented the following Summary of Facts, which Mr Richards acknowledged, were agreed by him.

Mr Jamie RICHARDS is the holder of a Class A Trainer Licence issued by New Zealand Thoroughbred Racing (NZTR). Mr RICHARDS has trained under his own name for the last 3 years.

On the 26th December 2020 the 4 year old Mare ‘Vamos Bebe’ was correctly entered and started in Race 5, the Hallmark Stud Handicap, a Listed race, at the Auckland Racing Club meeting held at the Ellerslie Racecourse in Auckland.

The horse is owned by Brent and Cherry Taylor, and Faith Taylor.

‘Vamos Bebe’ finished first (1st) in the nine horse field. ‘Vamos Bebe’ bled during the race and was stood down from trialling or racing as per Rue 651 regarding horse welfare.

‘Vamos Bebe’ was selected for a post-race swab. The horse was accompanied by Mr Reece TRUMPER an employee of Mr RICHARDS. A urine sample was obtained at 3.11pm. This was approximately 21 minutes after the race commenced.

Both Mr TRUMPER and the RIU swabbing official reported that there were no difficulties or irregularities with the collection of urine from ‘Vamos Bebe’.

At the conclusion of the race meeting all samples were checked by a Racecourse Investigator and placed in a tamper proof security bag with other samples taken that day and forwarded to the New Zealand Racing Laboratory in Auckland.

On the 8th January 2021, the Official Racing Analyst at the New Zealand Racing Laboratory, Mr Rob Howitt, reported in writing that the sample taken from ‘Vamos Bebe’ had been analysed and contained the Prohibited Substance Morphine.

Morphine is an opioid analgesic with a strong action. In equine veterinary medicine morphine was used historically by combining the tranquiliser acetyl choline and used as a treatment for equine colic by intravenous injection. There is little indication for this therapeutic use these days as modern opioid agonists such as butorphanol are specifically licensed for use in horses now. Morphine has been injected into the joints of horses to relieve the pain from arthritis. Morphine primarily acts as an analgesic but has a general action on several body systems. One effect on the central nervous system can cause euphoria and excitement in a horse especially in low doses. In high doses respiratory depression and sedation are more common signs.

In the Prohibited Substances Regulations (a) prohibited substances are defined as substances capable at any time acting directly or indirectly on one or more of the mammalian body systems. Morphine is capable of acting upon the nervous system, the musculoskeletal system, the respiratory system and the cardiovascular system. Furthermore Morphine falls under the category listing of “analgesics” in (b) Substances falling within the following categories of substances.

Morphine is therefore a Prohibited Substance within the Rules of Racing. The presence of Morphine at a race day or trial is therefore prima facie, a breach of the Rules.

Mr RICHARDS was interviewed at his training facility on the 11th January 2021. Mr RICHARDS was shocked to learn of the positive result and unable to explain how the positive sample may have occurred.

Mr RICHARDS elected to have the ‘B Sample’ analysed by the Victorian Racing Laboratory, known as Racing Analytical Services Limited. On the 2nd February 2021 the Laboratory Director confirmed in writing that the B Sample from ‘Vamos Bebe’ contained Morphine.

Mr RICHARDS had a number of horses swabbed on 26th December but none of his other horses returned positive swabs. As a result further inquiries were made with the New Zealand Racing Laboratory to ascertain whether it was possible that ‘Vamos Bebe’ had consumed poppy seeds.

Investigators were advised that the sample from ‘Vamos Bebe’ was consistent with the possible consumption of poppy seeds and NOT consistent with the administration of any pharmaceutical grade morphine.

Due to the number of horses trained by Mr RICHARDS (currently 115) and the ratio at which feed is consumed and utilised by his training establishment no feed or haylage samples were analysed as more than 2 weeks had passed and any samples would have been from a different batch to that which was consumed by ‘Vamos Bebe’ prior to the positive sample.

Mr RICHARDS has no previous history of breaches of the prohibited substance rule.

Penalty Submissions of the Informant

5. Mr Cruickshank presented the following penalty submissions:

1. The respondent Mr Jamie RICHARDS is a licensed Class A Trainer. Mr RICHARDS has been involved in the racing industry all his adult life. He is 31 years of age with a date of birth of 18th August 1989.

2. Mr RICHARDS has admitted a breach of the rules in relation to a charge of entering, presenting and racing the horse ‘Vamos Bebe’ at the Ellerslie racecourse when that horse had within its body a Prohibited Substance namely Morphine.

3. The facts are set out in the Summary of Facts and these are not disputed.

4. The penalties which apply to this case are detailed under Rule 804 (7) and Rule 804 (1).

Rule 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.

Rule 804 (1)

A horse which has been brought to a Racecourse or similar racing facility and which is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance shall be, in addition to any other penalty which may be imposed, disqualified for any Race or trial to which the Third Appendix hereto applies in which it has started on that day.

5. Sentencing Principles –

The four principals of sentencing can be summarised briefly

• Penalties are designed to punish the offender for his/her wrong doing. They are not meant to be retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

• In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

• A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.

• The need to rehabilitate the offender should be taken into account.

The first three principals have more relevance in this case.

6. Aggravating Factors –

a. This was a Listed Race which was run on one of the biggest days of the New Zealand Thoroughbred racing calendar.

7. Mitigating Factors –

a. Mr RICHARDS has admitted guilt and liability at the first available opportunity.

b. Mr RICHARDS has accepted responsibility for what occurred and has been fully co-operative with the RIU throughout the investigation.

c. Mr RICHARDS has an unblemished record over 13 years as a Licence Holder and Trainer.

d. Mr RICHARDS has been in the top three trainers in New Zealand for the last 5 years. He was the leading trainer in New Zealand in the 2019/20 season and currently leads the 2020/21 training premiership within excess of 100 wins.

e. His horses have undergone more post race swabs than any other Thoroughbred trainer in New Zealand and until this matter arose they have been without incident.

f. Mr RICHARDS and the Principal of Te Akau Stud and Racing Stables Mr David ELLIS have been proactive and co-operative in their dealings with the RIU in terms of how their training establishment is operated. Investigators have often been contacted and asked for advice on any improvements that could be made regarding record keeping, security, etc. Any advice provided has been adopted.

g. Proactive drug testing is regularly undertaken by Mr RICHARDS of his staff RIU Investigators are advised when this occurs and the results of such testing.

8. Discussion –

The investigation and laboratory findings are consistent with ‘Vamos Bebe’ having ingested poppy seeds either by foraging or eating feed which contained poppy plant material (including seeds).

Due to the number of horses (115) trained by Mr RICHARDS and the ratio at which feed is consumed by his training establishment feed or haylage samples were not analysed. Samples of haylage would have come from a different batch and from a different location to that which was consumed by ‘Vamos Bebe’ prior to the positive sample.

Veterinary advice obtained indicates that poppy seed plants can grow in small clusters. It is possible for one horse to consume poppy seed plant material and not another from the same batch of haylage. Similarly during foraging one horse may consume poppy seed plant material and not another.

Alternatively more than one horse may have consumed the poppy seed plant material but either not raced or not been swabbed on 26 December 2020.

A number of sawdust samples taken from the box occupied by ‘Vamos Bebe’ did not detect ‘Morphine’.

The evidence supports the contention as outlined. It should also be noted that Mr RICHARDS had seven horses post race swabbed on this particular day and only ‘Vamos Bebe’ returned a positive result.

This is not a situation where the drug, in this case ‘Morphine’ has been administered deliberately or to enhance performance.

Mr RICHARDS operates a successful and professional training establishment and this drug positive has caused him distress. He accepts however, that as Trainer he is ultimately responsible due to the absolute liability that applies to Trainers when a breach of the Prohibited Substance Rule occurs.

The RIU believe that Mr RICHARDS’ culpability is at the lower end.

Mr RICHARDS had had no other similar rule breaches during his involvement in the industry.

9. Conclusion

The RIU believe that this rule breach can be dealt with by way of a monetary penalty. To that end the RIU seek a fine of $2,000.

10. There are limited previous decisions regarding Morphine positives, however the following cases may provide some assistance and guidance regarding penalty.

THOROUGHBREDS

NZTR v P Schrafft – (2008) – related to two Morphine positives through the consumption of poppy seed plant material. Fined $4,000 and the horse disqualified.

HARNESS

RIU v J J CLEMENTSON (23.12.19) – related to a Morphine positive through the consumption of poppy seed plant material. It was Mr Clementson’s second breach of the prohibited substance rule. Fined $2,000 and the horse disqualified.

RIU v G Anderson & A Hoffman (5.03.13) - related to Morphine positive through the consumption of poppy seed plant material. Fined $1,250 and the horse disqualified.

GREYHOUND

RIU v J Allen (9.09.14) – related to Morphine positive through the consumption of poppy seed bread. Fined $2,000 and the dog disqualified

RIU v M Roberts (15.11.12) – related to Morphine positive through the consumption of poppy seed bread. Fined $2,000 and the dog disqualified

11. The ‘B’ sample was tested by Racing Analytical Services Limited in Victoria. The cost of that analysis was NZ$1,272.20. The RIU are seeking an order for those costs.

12. An order, pursuant to Rule 804(1) is sought for the disqualification of ‘Vamos Bebe’ from Race 5 at the Auckland Racing Club meeting at Ellerslie on 26 December 2020.

13. As this matter has been heard on a race day the RIU are not seeking any costs.

Penalty Submissions for the Respondent (Mr D Ellis)

6. Gentlemen, thank you for allowing me the opportunity to speak today.

The last six weeks has been an incredibly stressful time for Jamie, me and our families and everyone at Te Akau Racing.

Te Akau Racing was started in 1986, and I estimate that we have won well over 2500 races during the last 35 years, internationally and nationally. I believe the figures to be around 250 black type races and well over 65 Group 1 races.

This is the very first irregular test that Te Akau Racing has ever had and to say that I have taken this result badly, is an understatement.

Over the last 35 years, I have employed 5 Trainers to be at the helm of my stable. When I employ them, we spend many hours discussing what is expected of them when they join Te Akau Racing.

One of the first topics that we discuss, and that I make very clear, is that I have zero tolerance for pushing boundaries of any type. I detest cheating with a passion and tell my Trainers you will only win races with integrity or you have no place with Te Akau.

The second thing my Trainers must agree to, is to ensure the best record keeping in the industry. They must know where and when every drug is administered, and to which horse, all documentation must be completed at the time the medicine is removed from the security cupboard which is locked at all times.

I regularly audit this process and just last year in fact, asked the RIU to complete an audit to ensure that this process was being adhered to 100% by my Trainer.

At my own expense, I also drug test all my staff at Te Akau Racing Stables on a regular basis, this included casual workers and trackwork riders.

In short, I detest cheats, laziness, and any type of shortcut attitude. I simply do not want to win any race by any sort of unfair advantage. I reiterate, zero tolerance.

My Trainer has accepted his responsibility and that is not in contention, despite the fact that his record of integrity, as does Te Akau’s, speaks for itself. What needs to be discussed is the penalty.

I understand that the horse, VAMOS BEBE, needs to be stripped of her title, but what I cannot see is natural justice, that Trainer Jamie Richards should be fined when the stable has already been penalised for the winner’s percentage. That is surely a major fine for someone who has not intentionally done anything wrong.

Jamie Richards has accepted the charge but the bottom line is, he did nothing wrong. I have total confidence in his integrity and that of our team. They did not cheat and do not need to cheat.

I would like to refer to the four principles of sentencing, and discuss how they are applied in relation to this case, and the penalty that is being considered.

Firstly, the penalty is designed to punish an offender for his or her wrongdoing.

Now in this particular case, the Trainer has actually done nothing wrong. Therefore, as a penalty is designed to punish a wrong doing, effectively, there is no requirement for punishment.

Secondly, in a racing context, it is extremely important for any penalty to have the effect of deterring others from committing similar offences.

Now in this particular case, no one can argue that any amount of punishment would possibly preclude this situation from occurring again, as it is accepted, by all parties, that the sample is described as likely deriving from poppy seeds.

No punishment is going to stop that situation from reoccurring. As you know, it was completely accidental and it is beyond the bounds of any single person’s control to prevent it ever happening again. No punishment will serve any useful purpose in this context.

The third sentencing principle is that the penalty should reflect the disapproval of the JCA for the type of behaviour in question.

Now of course we agree, that it is a matter of principle, that the punishment must show the disapproval of the situation in question. However again, I respectfully say that no punishment can show disapproval of this type of situation, as it was beyond anyone’s physical control.

This was not deliberate behaviour and Jamie Richards is a victim of circumstances, this happened in the course of feeding the horse as every trainer in the country does, several times every day.

So in my respectful view, it comes down to this, no penalty can possibly punish something that every trainer does, feeding their horses, giving them the best care possible.

How do you punish someone for something over which he had no control of, none whatsoever, and there is not debate about that?

Jamie has had to acknowledge presenting a horse to race under these circumstances but he absolutely had no idea this would be the outcome. He did everything right and should not be punished for something outside of his control.

Good and decent people in the industry should not be punished, they should be supported.

Finally, the fourth part of justice is “rehabilitating the offender”. This is irrelevant, as I know you concur that Jamie Richards is a man of the highest standards and integrity, from the day I met him I have never questioned this.

Gentlemen, I would like to refer you to the recent case of a similar type of judgement which occurred at New Plymouth in the case of Ramsay, Manning and Brick where a similar positive was returned unknown, from 3 different trainers, 3 different races, none of which were comparable and the penalty reflected that. The horses were disqualified and no fine was imposed on the trainers and our submission in this case is absolutely identical.

The punishment and angst that Jamie Richards has already experienced should be enough, the horse won a Listed Race, and the owners have lost that very important black type for a mare that may never race again.

The Trainer has lost the Trainer’s percentage of the winnings, which is significant punishment in a very very long way, for anyone who is anyone who is completely squeaky clean in every part of his career before this result.

Jamie Richards has already had his integrity and reputation besmirched by this, for a young man beginning his career do you not think the grief and worry that this has caused is not sufficient penalty, combined with the financial loss and the loss to our owners?

This horse has been disqualified as we expected she must be, and the owner has lost the incredible honour of this horse being a stakes winner when she goes to Stud. There have been no winners out of this, everyone has already been punished.

That is all that needs to be said on the four principles of sentencing.

I am requesting you impose a zero fine, there is a precedent here, with the aforementioned cases of Ramsay, Manning and Brick. This should be adhered to. They lost the races and received no fine. It is not right for Jamie Richards to be treated any more harshly than this.

Gentlemen, this is a similar case and I ask for Jamie Richards to be treated the same. He is a young man with integrity through and through, he was raised that way and lives by that every day, he has set a true example throughout his career to young people who aspire to be involved in our industry.

Thank you for your time.

Mr Richards said that he was happy with this submission and had nothing further to add.

Reasons for Penalty

7. On giving due consideration as to a suitable penalty, the following matters were taken into account:

1. Mr Richards’ unblemished record under the Rule and over a 13 year period of involvement in the thoroughbred industry.

2. During the last three years Mr Richards has had many horses swabbed, in fact more than any other Thoroughbred Trainer in New Zealand, with this positive being the first irregularity.

3. The breach was admitted without undue delay.

4. Mr Ellis’ explanation on how the stable is operated and in particular the strict record keeping in relation to the administration of medication to any horse.

5. Other penalties imposed for similar breaches.

6. The wording of Rule 804(2) which states in part, “the trainer and any other person who in the opinion of such tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these rules”.

7. The New Plymouth cases referred to by Mr Ellis could not be used as a reference in this instance due to no charges being preferred against any of the trainers involved, by the RIU.

8. An aggravating factor was that it was a Listed Race.

9. The Committee was satisfied, based on the evidence provided to it, that the morphine came from poppy seeds (via horse feed) and was not administered.

10. The record shows that Mr Richards had 7 horses swabbed on the day in question with only the one returning a positive swab result.

Penalty

8. Mr Richards was Fined $1500 and ordered to pay the RIU $1272.20 being the cost of the B swab sample being tested by Racing Analytical Services Ltd in Victoria.

There was no order as to costs to the RIU or the Judicial Control Authority as the hearing was conducted on a raceday.

Disqualification

9. Acting pursuant to Rule 804(1) VAMOS BEBE is disqualified from the Hallmark Stud Hdcp, Race 5, conducted at the Auckland Racing Club Meeting on 26 December 2020.

The placings shall be amended accordingly.

N McCutcheon

Chair

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