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Non Raceday Inquiry RIU v J T McInerney - Reserved Decision dated 4 April 2019 - Chair, Mr R G McKenzie

Created on 05 April 2019

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association

IN THE MATTER of Information No. A7179

BETWEEN SIMON ANDREW IRVING, Racing Investigator for the Racing Integrity Unit

Informant

AND JOHN THOMAS McINERNEY of Darfield, Licensed Public Trainer

Respondent

Judicial Committee: R G McKenzie (Chairman)

D J Anderson

Present: Mrs K R Williams, for the Informant

Mr J T McInerney, the Respondent

Date of Hearing: 29 March 2019

Date of Decision: 4 April 2019

RESERVED DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No.7179 alleges that: 

(1) On 25 January 2019, John Thomas McInerney, Licensed Trainer and person in charge of the greyhound NIPPAOFSAMBUCCA who ran in Race 6 [Mr Whippy Southland] at the Southland Greyhound Racing Club meeting at Ascot Park Raceway, failed to present the greyhound free of the Category 5 Prohibited Substance, Lignocaine, 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.

[2] Mrs Williams produced a letter dated 12 March 2019 and signed by Mr M R Godber, General Manager of the Racing Integrity Unit, authorising the lodging of the information.

The Rules

[3] Rule 61 of the Rules of New Zealand Greyhound Racing Association provides as follows:

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.

61.3 Without limiting any of the provisions of 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.

The Plea

[4] The above charge and Rules were read to Mr McInerney and he indicated that he admitted the charge which was found proved accordingly.

Summary of Facts

[5] Mrs Williams presented the following written Summary of Facts:

1. The Respondent John Thomas McInerney is a licensed Public Trainer under the Rules of New Zealand Greyhound Racing (GRNZ).

2. He has held his GRNZ Trainer’s licence for many years.

3. He currently trains 74 racing greyhounds from “Homebush” near Darfield and has approximately 175 greyhounds in total on that property in addition to his North Island satellite training facility at Himatangi operated by his son.

4. Mr McInerney jointly owned and trained the 3yo bitch NIPPAOFSAMBUCCA which finished second in Race 6 at the Southland Greyhound Racing Club’s meeting at Ascot Raceway on 25 January 2019 before fatally collapsing at the lure.

5. NIPPAOFSAMBUCCA earned gross stake money of $387.

6. A small amount of blood and a minute amount of urine was obtained from the deceased dog by the RIU raceday vet prior to a post mortem being conducted.

7. The post mortem revealed an enlarged left ventricular and the cause of death was diagnosed as a heart attack.

8. The samples were sent with the other race-day swabs to the New Zealand Racing Laboratory Services (NZRLS) for analysis.

9. On 07 February NZRLS issued a Certificate of Analysis detailing the blood sample (#109372) positive to Lignocaine.

10. There was insufficient quantity of urine for diagnostic testing.

11. There was insufficient quantity of blood to allow for a reserve ‘B’ sample to be available to Mr McInerney for further comparative testing.

12. Lignocaine is a Category 5 Prohibited Substance per the GRNZ Regulations.

13. Also known as Lidocaine, it is a medication mainly used as a nerve blocker and to treat ventricular tachycardia. It is commonly used by vets as a local anaesthetic when suturing animals and as an epidural during calving. It is also used in human medicine and can be found in some applications for its soothing, pain-killing properties.

14. The NZEVA Veterinarians advisory details Lignocaine as having a three-day detection time and a 4.2 day withhold recommendation.

15. There is no evidence or expert opinion suggesting that the Lignocaine found in NIPPAOFSAMBUCCA was linked to her death.

16. On 13 February RIU staff attended the Homebush property and interviewed employees as Mr McInerney was non-contactable on holiday.

17. Employee, Brook Wate, stated that he and another employee drove a bus with 20 greyhounds, including NIPPAOFSAMBUCCA to Ascot Park the day prior to the races while in convoy was Mr McInerney with approximately 40 greyhounds on board.

18. The dogs were emptied, fed and watered en route before arriving at Ascot Park where they overnighted on the bus and were fed breakfast the following morning.

19. Nothing unusual was noted by Mr Wate throughout the process.

20. RIU staff could not identify any obvious source of the Lignocaine at the Homebush kennels and no items containing the substance were located.

21. Inquiries with Mr McInerney’s vet did not identify any evidence of Lignocaine being prescribed or used to treat any greyhound at the property.

22. Mr McInerney was spoken to the following week and he too could offer no explanation for the positive other to question the lack of security at the Ascot Park kennels.

23. Mr McInerney made inquiries with the local farmers from whom he sources his beef and found no evidence that any of the cows he had processed had been treated with Lignocaine.

24. Four other McInerney dogs were swabbed at the same race meeting and all were clear.

25. Mr McInerney has six previous charges under the GRNZ Prohibited Substance Rule spanning 22 years.

Penalty Submissions

[6] Mrs Williams then presented the following written Penalty Submissions:

1. The Respondent John Thomas McInerney is a Licensed Public Trainer under the Rules of Greyhound Racing New Zealand.

2. He has held his trainer’s licence for many years and currently trains approximately 100 race-dogs out of his two properties interisland. 

3. The Respondent has admitted a breach of Rule 61.1 & 61.3.

4. The circumstances are detailed in the attached Summary of Facts which have been agreed.

5. Lignocaine (aka Lidocaine) is a water-soluble local anaesthetic. It is used as a sterile aqueous solution in cattle, horses, swine, goats and sheep prior to surgery for low and high epidural anaesthesia. It is occasionally used intravenously in large animals in the treatment for ventricular arrhythmia. It is also used in human medicine - commonly marketed as Xylocaine – as an ointment, jelly or injection.

6. The NZEVA Veterinarians advisory details Lignocaine as having a three-day detection time and a 4.2-day withhold recommendation.

7. Lidocaine is classed as a Category 5 Prohibited Substance under the Rules of greyhound racing – All substances that are registered in New Zealand for veterinary use and have accepted therapeutic benefits to a greyhound.

8. There is no requirement to prove the cause of administration / presentation for a breach of the Prohibited Substance Rule and in this case the RIU investigation failed to identify an obvious source of the Lignocaine.

9. On the race-day in question Mr McInerney had four other clear swabs, two clear swabs three days prior at the same venue, one clear swab the day prior at Addington and four clear swabs combined four days later at meetings at Addington and Forbury Park.

10. As per the JCA Penalty Guidelines the recommended starting point for a Category 5 Greyhound ‘Presentation’ offence is three months Disqualification and/or a $4000 Fine.

11. Analysis of TAB betting records revealed no unusual bets associated with the greyhound, the trainer / owner or the race.

12. Under Rule 61.4 NIPPAOFSAMBUCCA is required to be disqualified from the race.

Previous Relevant Cases -

13. There have been no previous GRNZ positives for Lignocaine but one in each of the other two codes: NZTR v S (28.10.2010) – source not identified - $6000 fine; HRNZ v K (25.11.2005) – source not identified - $4000 fine.

RIU v McInerney (13.07.2017) – Ketoprofen x2; source unidentified, probably contaminated meat; $2500 fine

RIU v E (24.05.2017) – Procaine x2, Flunixin x1; unidentified source, possibly contaminated meat; $2000 fine

RIU v A (27.04.2017) – Salbutamol; source identified as treatment; $3000 fine

RIU v R (13.03.2017) – Ibuprofen x2; source identified as treatment; $3000 fine

RIU v M (04.04.2016) – Ibuprofen; source identified as treatment; $3000 fine

Mitigating Factors -

14. It is acknowledged that the Respondent and his employees have been cooperative throughout the investigation.

15. The Respondent has admitted the breach at the first opportunity.

16. GRNZ records detail that in the completed 2017/18 season the Respondent’s greyhounds had 5819 starts and 5226 in the season prior.

Aggravating Factors -

20. Mr McInerney has six previous breaches of the Prohibited Substance Rule:

1997 – Procaine – no penalty
2001 – Heptaminol – fined $1000
2010 – Codeine – fined $1,500,
2010 - Hydroxystanozolol - fined $3,500
2013 – Caffeine x2 – fined $3,000
2017 – Ketoprofen x2 – fined $2500

Conclusion -

21. Given the recommended starting point of $4,000, the mitigating and aggravating factors as listed and the overall circumstances considered in this case, it is submitted that a $3,500 fine is an appropriate penalty.

Submissions of Respondent

[7] Mr McInerney referred to paragraph 15 of the Summary of Facts. He pointed out that the substance, Lignocaine, is not used on an animal that is racing. He believed that, had the greyhound ingested it before racing, that would be a possible cause of its death. He produced some information which showed that certain hand creams and other products available in New Zealand contained the substance.

[8] There were, he said, no details available to show the amount of the substance present, but he submitted that the presence of Lignocaine in the greyhound could, possibly, be explained by hand cream on the hands of some person in the kennels, where gloves are not worn at this particular racecourse. The greyhound could easily have licked a hand. This was real possibility, he said. He has made extensive enquiries and has discounted the possibility of the positive resulting from meat.

[9] The security at the Invercargill track is quite lax and, if the reading were a high one, it is possible that the dog had been administered the substance at the track. There would be nothing to prevent someone getting to the dog, he said. The vet room doubles as a tearoom and is open all day, Mr McInerney said.

[10] He had other dogs swabbed post-race at the race meeting and all returned clear samples swabbed. All of his dogs eat the same meat and kibble.

[11] The dog, he described as, a “nice young dog” which was in good form. She had won on the track two days earlier, 22 January.

[12] He also told the Committee that four vials of blood were taken from the greyhound, but none of them was made available to him for independent testing, as he was told they were all required for the analysis process. There was no urine. Mrs Williams explained this, but we do need to go into details. However, we accept the reason for there being no blood available for testing by Mr McInerney. As far as the level of the substance in the blood is concerned, Mrs Williams explained that it had been determined that it would have been insufficient to have caused any toxic symptoms, and this line of enquiry had not been pursued.

[13] Mr McInerney said that he would like to know the source of the positive sample and, also, the cause of the dog’s death, but he accepted that he was not likely to find these out. He has tried to discover the source of the contamination but has been unable to do so. He said the veterinarian who usually works on raceday had contacted a Pathogenesist in Invercargill to see if kidney, heart or liver samples taken at the post-mortem would reveal level or cause of death, but he was told that it would be unlikely.

[14] Mr McInerney told the Committee that he understood that Lignocaine is a prescription-only drug and available only to veterinarians. When used as an injectable, it typically begins working within four minutes and lasts for between a half-hour and three hours.

[15] NIPPAOFSAMBUCCA was kennelled at 10.00am and raced at 2.00pm, Mr McInerney said. Prior to this race, she raced on the preceding Tuesday. He estimated her value at $10,000 and said that she was raced by a very good friend and owner.

[16] He had 58 runners at the Friday meeting and had 55 runners on the Tuesday meeting. Several of his dogs were swabbed at both meetings and all tested clear.

[17] Mr McInerney repeated that he was concerned over the lack of security in the kennel block at Ascot Park. This positive has “devastated” him, as he takes every possible precaution to keep his dogs safe.

[18] Mr McInerney told the Committee that a suspension or disqualification would have a devastating effect on him and he would accept a fine.

Reasons for Penalty

[19] The penalty Rule is Rule 63.1:

Any Person found guilty of an offence under these Rules shall be liable to:
(a) A fine not exceeding $10,000.00 for any one (1) Offence except a luring/baiting Offence under Rule 86; and/or
(b) Suspension; and/or
(c) Disqualification; and/or
(d) Warning Off.

[20] Greyhound Racing New Zealand has prescribed starting points for breaches of the Prohibited Substance Rule, according to the category of the particular prohibited substance. In the present case, the prohibited substance, Lignocaine, is in Category 5 (“all substances that are registered in New Zealand for Veterinary use and have accepted therapeutic benefits to a greyhound”). The penalty starting point for a Category 5 prohibited substance is disqualification for 3 months and/or a $4,000 fine. The Informant did not seek a suspension or disqualification in this case.

[21] The Committee accepts that Mr McInerney is “devastated” (to use his own word) at the loss of NIPPAOFSAMBUCCA. He described her as “a nice young dog”, in good form and he estimated her value at $10,000. The Committee notes that, prior to the race on 25 January, she had raced 100 times for 16 wins and 28 placings, for stakes in excess of $27,000.

[22] Mr McInerney was frustrated at not knowing the level of the substance revealed by the analysis. If the reading were known to be a high one, then he would have suspected foul play and such a level may also have explained the death of the greyhound following the race. If the reading had been a low one, his explanation was that the greyhound may have had access to a trace amount of the substance through, perhaps, licking a hand that had a hand cream applied. Because of the unfortunate death of the greyhound, it is more important to him to discover the source of the substance that she had in her system but, he accepts, he is now unlikely to ever find the answer.

[23] We were told by the Informant that there have been no previous positives to Lignocaine in greyhound racing in this country. We were referred to two previous cases involving Lignocaine, one in each of the codes of thoroughbred racing (2010) and harness racing (2005). It is interesting that, in both of those cases as in this case, the source of the Lignocaine was not identified. We found those two previous cases as being of limited assistance to us in determining penalty in this case. Significantly, they were both some time ago.

[24] Mr McInerney has breached the Prohibited Substance Rule on six previous occasions since 1997. The Committee notes that, for the 1997 breach, Mr McInerney received no penalty. The 2001 breach is historical. The four breaches since 2010, only one of which has been since 2013 need to be viewed in perspective. Mr McInerney races a large number of greyhounds out of his kennels each season so, in the light of that, his record is a good one. To be specific, in the 2016/2017 season, Mr McInerney trained 223 greyhounds for 5226 starts (540 wins) and, in the 2017/2018 season, 223 greyhounds for 5819 starts (646 wins). Of course, the Committee recognises that Mr McInerney has been one of the country’s most prominent and successful trainers of greyhounds for a number of seasons. In the circumstances, the Committee is prepared to regard Mr McInerney’s record as no worse than a neutral factor.

[25] The Committee accepts Mr McInerney’s very frank admission of the breach, his cooperation during the course of the investigation as mitigating factors. Mr McInerney’s integrity was not challenged by the Informant. It is also a significant factor that there is no evidence of any negligence on the part of Mr McInerney or his staff.

[26] The Penalty Guide starting point is referred to in paragraph [20]. The Informant has not sought a suspension or disqualification and the Committee agrees that such a penalty is not warranted in the circumstances of this case. The starting point for a fine is $4,000.

[27] Having regard to the factors referred to in paragraph [25], the Committee is satisfied that a significant discount from the starting point is appropriate and we fix that discount at $1,500.

[28] The Committee is satisfied that a fine of $2,500 is sufficient to emphasise the need for deterrence and denunciation and to maintain integrity and public confidence in greyhound racing.

Penalty

[29] Mr McInerney is fined the sum of $2,500.

Disqualification of Greyhound

[30] Rule 61.4 of the Rules of New Zealand Greyhound Racing Association provides:

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

[31] That requirement is mandatory.

[32] Accordingly, it is ordered that NIPPAOFSAMBUCCA (2nd) is disqualified from Race 6, Mr Whippy Southland, held at the Southland GRC’s meeting on 25 January 2019. As a consequence of the disqualification, the amended result for the race is as follows:

1st Nippa Martino (5)
2nd Homebush Skip (3)
3rd Homebush Maycee (1)
4th Gotcha Rocky (2)

[33] It is further ordered that the stake paid to Mr McInerney be repaid to New Zealand Greyhound Racing Association and that stakes for the race be redistributed and paid in accordance with the amended result.

Costs

[34] The RIU did not seek an order for costs. The hearing took place on a raceday and, therefore, there is no order for costs in the favour of the Judicial Control Authority.

R G McKENZIE       D J ANDERSON
Chairman              Panellist

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