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Non Raceday Inquiry RIU v J Waddell - Reserved Decision dated 3 December 2020 - Chair, Mr P Wicks QC

Created on 04 December 2020

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

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

ANDY CRUICKSHANK Investigator,

for the Racing Integrity Unit (RIU)

Informant

JASON WADDELL

Licensed Jockey

Respondent

Information: No. A8720

Judicial Committee: Mr P Wicks QC, Chairman

Mr S Ching, Member

Appearing: Mr N Webby, Counsel for the Informant

Mr N Grimstone

Mr A Cruickshank

Mr P Cornegé, Counsel for the Respondent

Mr J Waddell, Respondent

RESERVED DECISION OF JUDICIAL COMMITTEE DATED 3 DECEMBER 2020

THE FACTS

1. Mr Waddell is a Licensed Class A rider under the New Zealand Rules of Thoroughbred Racing. He has been racing for almost 20 years. He is aged 34 years.

2. On 17 September 2020 RIU Officials conducted routine drug testing at the Waikato Racing Club meeting at the Te Rapa Racecourse in Hamilton.

3. Mr Waddell was one of the riders selected for testing. At 2.15pm he was served with a Drug Testing Notification Form requiring a sample of his urine to be supplied. The Form advised that testing was between 2.15pm and 5pm.

4. Mr Waddell was advised he was not to leave the jockey area or racecourse or consume unnecessary fluid in order to dilute or contaminate any samples. He was also advised that a Racing Investigator would monitor him in order to ensure the integrity of the drug test.

5. Mr Waddell was further advised he could drink some water, complete the test, and then providing it was clear ride in his races that day. 

6. Mr Waddell went back to the male jockey’s room and changed out of his racing silks and into his civilian clothes. He made no attempt to go to the drug testing van or provide the sample between about 2.15pm and 4.35pm.

7. The Racing Investigator spoke to Mr Waddell again at about 4.35pm. Mr Waddell said he was dehydrated and would be unable to provide a sample. Mr Waddell was advised of the extension of the period in which he could provide the sample until 6.30pm. He was also advised failure to provide a sample would result in a charge being laid.

8. Mr Waddell maintained he could not provide a sample in the remaining time period available. The Investigator advised him he could present at the Drug Detection Agency office in Hamilton and provide a sample over the next few days. Mr Waddell advised the Investigator he would not be doing anything and would not be riding anymore. He said he would provide a sample the next day.

9. At about 6.30pm Mr Waddell was further spoken to and asked if he would provide a sample. He said he could not and was stood down from riding before being released from the racecourse.

10. Mr Waddell did not subsequently attend at the Drug Detection Agency office in Hamilton and provide a sample.

11. As a result, Mr Waddell was charged with a breach of Rule 656(2). Having pleaded guilty to the breach of Rule 656(2), Mr Waddell is subject to the penalty or penalties which may be imposed under Rule 803.

The submissions on penalty

12. The Informant’s penalty submissions were in summary:

a. The purpose of drug testing regime is to enable random testing to ensure licence holders engaged in Safety Sensitive Activities are free from illicit substances.

b. The safety and welfare of all Licence Holders and horses is paramount.

c. Mr Waddell has a long history of breaching the Rules.

d. In disqualifying Mr Waddell in 2015 for 12 months for improper riding/doing an act detrimental to the interests of racing the Judicial Committee described Mr Waddell as having a ‘most unattractive record of breaching the Rules of Thoroughbred Racing.”(RIU v J Waddell, 4 December 2015 at [8.9])

e. Denunciation and deterrence are most applicable to in light of Mr Waddell’s history. The conduct of Mr Waddell goes to his integrity and probity and he should no longer have the privilege of working in the industry (per Appeal - RIU v Lawson, 13 May 2019).

f. On this occasion Mr Waddell simply refused in the face of opportunities to do so to provide a sample. The clear inference is he had something significant to hide and that the prohibited substance involved was Methamphetamine.

g. The aggravating factors relevant to penalty are:

• Mr Waddell was unco-operative on the day in question.

• Mr Waddell’s extensive history, including a previous disqualification of 14 months for a positive test for Methamphetamine.

• The Rules around drug testing are well known to Mr Waddell who has been in the industry for approximately 20 years.

• The conduct at issue goes to the integrity of the Industry.

h. Taking into account the acceptance of the charge a final penalty of 3 years disqualification backdated to 17 September 2020 should be imposed.

i. In support of the penalty sought the Informant relied principally on RIU v Cropp [2014]. Ms Cropp was given a 3 years disqualification for her conduct in having been served with a notice to provide a sample on a raceday gave the sample which indicated a non-negative result to Methamphetamine but then destroyed the sample.

13. The Respondent’s penalty submissions were in summary:

a. Whilst Mr Waddell has an unattractive history he should not be re-punished for those earlier breaches.

b. Mr Waddell’s only relevant previous breach was the positive test for Methamphetamine which was 10 years ago.

c. Mr Waddell if he had taken the test would have tested positive for Cannabis, although he does not seek a penalty based on a positive for Cannabis.

d. It can’t be concluded that Mr Waddell would have returned a positive test for Methamphetamine.

e. Mr Waddell didn’t consider he needed to give a test because he made the decision to retire from racing.

f. Mr Waddell’s lack of co-operation is not an aggravating factor but an element of the breach itself.
g. The breach was admitted by Mr Waddell at the first opportunity.

h. Mr Waddell suffers from depression and donates 10% of his earnings to the Mental Health Foundation of New Zealand.

i. Significantly Mr Waddell has voluntarily cancelled his Rider’s licence and undertakes never to apply for a licence to ride at races or trials again.

j. The cases of RIU v Cropp and NZTR v Harris [2010] are distinguishable as involving significantly more serious breaches of the Rules. The relevant decisions are those of the Judicial Committee involving tests for positive tests for Methamphetamine, namely:

RIU v Isherwood (4 November 2013)

RIU v Ihaka (20 January 2016)

RIU v Lammas (21 October 2019

k. But for Mr Waddell’s self-imposed life ban the penalty would be disqualification. That self-imposed ban is a strong mitigating factor so that he should instead be suspended for 12 months.

Reasons for penalty

14. The drug testing regime in Racing is an important protection that has been in place for industry participants since 1995. The testing regime is to ensure the safety and welfare of all licence holders and horses.

15. A refusal under the Rules to submit to a drug test by providing a urine sample when requested is a serious breach of the Rules. When a Licence Holder refuses to provide a sample the RIU is denied the ability to find out what, if any, prohibited substance is in the Licence Holder’s system.

16. A refusal means the drug test has not been completed and leaves it open as to what the test may have revealed in respect of any illicit drug. In this case Mr Waddell now says a test would have revealed Cannabis. In the absence of the test having been completed we are unable to conclude as Mr Waddell asserts. Similarly, in the absence of the test being completed we cannot draw the inference contended for by the Informant that the illicit drug concerned was Methamphetamine.

17. Mr Cornegé for Mr Waddell responsibly acknowledged a fair presumption to make for the purposes of determining penalty is to presume that there would have been a positive test for a class A controlled drug.

18. Mr Cornegé for that reason did not seek a penalty for Mr Waddell based on the substance he was avoiding detection of being Cannabis.

19. The same maximum penalties apply so as to treat breaches of Rule 656(2) and 656(3) as interchangeable for the purposes of assessing a starting point for penalty. Guidance on penalty therefore is available from cases relating to positive tests for Methamphetamine.

20. The Committee does not consider either the Cropp or Harris decisions are relevant in this instance. Put shortly, they involve more serious breaches of the Rules and are distinguishable.

21. The Committee takes guidance from the cases of Ihaka (2010), Waddell (2010), Isherwood (2013) and Lammas (2020) involving positive tests for Methamphetamine.

22. Recognising that Mr Waddell previously tested positive for Methamphetamine albeit 10 years ago, his admission of the charge and his expressed (but unenforceable) undertaking not to apply for a jockey’s licence the Committee considers a period of disqualification for 1 year and 10 months backdated to commence from 17 September 2020 should be imposed.

Penalty

23. Mr Waddell is disqualified for 1 year and 10 months to run from 17 September 2020 to 16 July 2022.

24. In the course of the penalty hearing Mr Waddell told the Committee that Cannabis was a big part of his life and he would like help to address his use of the drug. The Committee recognises the principle of sentencing that the need for rehabilitation of the offender should be taken into account.

25. Accordingly, should Mr Waddell undertake a drug and alcohol assessment and then complete an appropriate drug and alcohol rehabilitation programme or counselling the period of disqualification will then be reduced by 5 months so that the period of disqualification will then be for 1 year and 5 months.

26. The Committee in light of the significant period of disqualification imposed makes no order for costs in favour of the RIU. Mr Waddell is ordered to pay a contribution to the Judicial Control Authority’s costs of $400.

Dated this 3rd day of December 2020

Paul Wicks QC

Chair

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