You are here: Home / Non race day hearings / Non Raceday Inquiry RIU v N A Chilcott - Decision dated 12 February 2020 - Chair, Mr B Scott

Non Raceday Inquiry RIU v N A Chilcott - Decision dated 12 February 2020 - Chair, Mr B Scott

Created on 14 February 2020

BEFORE A JUDICIAL COMMITTEE

APPOINTED BY THE JUDICIAL CONTROL AUTHORITY

HELD AT AUCKLAND

Information No: A8482

IN THE MATTER of the New Zealand

Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT

Mr O Westerlund

Investigator

Informant

AND Nicola Ann Chilcott

Public Trainer/Open Driver

Respondent

Information No: A8482

Judicial Committee: Mr B J Scott, Chairman

Mr A J Dooley, Member

Venue: Alexandra Park, Auckland

Present: Mr O Westerlund, the Informant

Miss N A Chilcott, the Respondent

Date of Hearing: 7 February 2020

DECISION OF JUDICIAL COMMITTEE

THE CHARGE

Information number A8482 alleges that on Friday the 13th December 2019 at Auckland, the Harness Trainer Nicola Ann CHILCOTT was the licenced trainer of the Standardbred Harness Race Horse PHOEBE IMPERIAL which was presented for and raced in Race 3, the Thames HRC 100 Years Mobile Trot R41 to R62 1609 metres, at a race meeting conducted by the Auckland Trotting Club – and failed to present the said horse free of the prohibited substance, namely ‘Salbutamol’ in its system, being an offence under the provisions of Rules 1004(1A) & 1004(3) and (4) and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 1004(7) and to the horse penalties in Rule 1004(8) and 1004D(1) of the New Zealand Rules of Harness Racing.

The Rules

Rule 1004(1A)

A horse shall be presented for a race free of prohibited substances.

Rule 1004(3)

When a horse is presented to race in contravention of sub rule (1A) or (2) the trainer of the horse commits a breach of these Rules.

Rule 1004(4)

A breach of sub-rule (1A), (2), (3) or (3A) is committed regardless of the circumstances in which the TCO2 or prohibited substance came to be present in or on the horse.

Rule 1008

In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:

(a) it shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule; and

(b) any breach of a Rule shall be considered as an offence of strict liability.

AUTHORITY

Mr Westerlund presented a letter dated 23 January 2020 signed by M R Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 1108 (2) authorising the filing of the Information.

The Plea

1. Miss Chilcott had signed the Statement by the Respondent on the Information form indicating that she admitted the breach of the Rule.

2. Miss Chilcott was present at the hearing of the Information. The charge and relevant Rules were read to her, after which she confirmed that she admitted the breach.

Summary of Facts

The Respondent, Nicola Ann CHILCOTT, is a licensed Public Trainer and Open Driver under the Rules of New Zealand Harness Racing (HRNZ).

On the 13th December 2019 PHOEBE IMPERIAL was correctly entered and presented to race by Nicola CHILCOTT in Race 3 - the Thames HRC 100 Years Mobile Trott R41 to R62 1609 metres at the Auckland Trotting Club meeting at Alexandra Park.

PHOEBE IMPERIAL is a 5-year-old bay gelding (Imperial Count – Duchess of Phoebe) trained by Nicola CHILCOTT.

PHOEBE IMPERIAL underwent a random Post Race urine swab. The Respondent does not contest the swabbing process.

PHOEBE IMPERIAL finished first of the thirteen horse field winning a stake of $8,025.

All swab samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the Rules of New Zealand Harness Racing.

On the 31st December 2019 the Official Racing Analyst reported in writing that the sample from PHOEBE IMPERIAL had tested positive to ‘Salbutamol’.

Salbutamol is used to treat cough, wheeze and difficulty breathing caused by respiratory problems.

Salbutamol is a Prohibited Substance within the meaning of the Rules and its presence in a raceday sample is, prima facie, a breach of the Rules.

The Respondent was spoken to at her Stables on Friday 3rd January 2020. She stated that PHOEBE IMPERIAL had been diagnosed with an inflammatory airway disease since January 2019. The horse has been given a course of treatment. The treatment consists of inhalers: 10 x puffs of Ventolin Inhaler, 10 x puffs of Flixotide Inhaler and 5 x puffs of Atrovent Inhaler. The inhalers have a withholding period of two days. The horse has been swabbed three previous times and the result was clear. She cannot give an explanation of how it has occurred.

Investigators located the 3 x inhalers used for the treatment of PHOEBE IMPERIAL.

It is believed that the probable cause of PHOEBE IMPERIAL’s positive has been an oversight by the trainer on the withholding period for the medication given.

On the 21st January 2020, the Respondent has consented for the horse PHOEBE IMPERIAL to be disqualified from the said race.

PHOEBE IMPERIAL has since been disqualified by the JCA effective as of the 23rd January 2020 pursuant to rule 1004D (6).

Dr Andrew Grierson the Chief Veterinarian for HRNZ states that medications used here for respiratory disorder are quite usual. Ventolin, Flixotide and Atrovent are all registered for man and not for horses however there are no aerosol formats available in Vet medicine. He confirmed that the ‘detection time is not the same as the withholding time.’ If the trainer was using Ventolin (Salbutemol) up to 2 days before a race that would likely explain how it came to have a positive.

The Respondent have been involved in the Harness Racing Industry virtually her entire adult life.

The Respondent has a previous breach for breaching the Prohibited Substance Rule.

Respondent’s Submissions

Miss CHILCOTT advised the Committee that she agreed with the summary of facts as presented by Mr Westerlund.

She then told the Committee that when PHOEBE IMPERIAL first raced it was very successful but after five starts it contracted a bad virus and was turned out. When it came back in it did not race very well at all and Miss CHILCOTT tried all sorts of remedies to fix it but to no avail.

In October 2018 Miss CHILCOTT advised that she was in Australia for approximately a month campaigning another horse from the stable and while there she became friendly with a local lady vet. She said she told the vet of the problems that she was having with PHOEBE IMPERIAL and the vet suggested that she should arrange for it to have a lung wash to see if that might disclose what was wrong. This was duly arranged, and the results were sent to Miss CHILCOTT in Australia and she discussed them with the vet there. The vet told her that PHOEBE IMPERIAL had an inflammatory airway disease and the means of treating that were with respiratory inhalers. The inhalers are those as used by humans and Miss CHILCOTT had to arrange for her local vet to give her a prescription so that she could go to the chemist to obtain the inhalers. She then said that PHOEBE IMPERIAL’s form turned around once the inhalers were being used and he raced until the Harness Jewels at the beginning of June 2019 and after that she turned him out.

Miss CHILCOTT then said that PHOEBE IMPERIAL was then brought back in and his next win was the one on 13 December 2019 at Alexandra Park at which the horse had a positive test.

Miss CHILCOTT pointed out that PHOEBE IMPERIAL had seven swabs when using the inhalers and only one was positive. This was confirmed in a written record provided by Mr Westerlund to the Committee.

Miss CHILCOTT said that she had accepted that she had not exercised the required amount of care but she said that there was no intent on her part. She was the victim of misinformation from the Australian vet. Miss CHILCOTT detailed to the Committee the medication that is used for PHOEBE IMPERIAL and she said she understood that the withholding period for the inhalers was two days but this has subsequently proved not to be correct.

Miss CHILCOTT told the Committee that PHOEBE IMPERIAL was nominated for the Cambridge Harness Meeting on 24 December 2019 but she realised that this would fall within the withholding period and she therefore scratched PHOEBE IMPERIAL and started it at Alexandra Park on 31 December 2019.

Miss CHILCOTT said that she realises that after PHOEBE IMPERIAL returned from a spell she should have checked again on withholding times but didn’t do so.

Miss CHILCOTT also told the Committee that the week before the start on 13 December PHOEBE IMPERIAL suffered from “tie up” and after it’s race it was extremely distressed and took a long time to recover. She said PHOEBE IMPERIAL had not tied up before and this may have caused PHOEBE IMPERIAL to retain some of the Salbutamol from the inhalers in its system. In support of this Miss CHILCOTT presented a letter dated 15 February 2020 from Franklin Vets.

Miss CHILCOTT then said that she had changed her systems and she now allows 4.2 days for a withholding time.

Informant’s Penalty Submissions

Mr Westerlund presented the following written submissions in relation to penalty: -

1. INTRODUCTION:

1.1 The Respondent Nicola Ann CHILCOTT is a licensed Public Trainer under the New Zealand Rules of Harness Racing.

1.2 The Respondent has been involved in the racing industry as Public Trainer and Open Driver her entire adult life.

1.3 Miss Nicola CHILCOTT is 48 years of age with a date of birth of 4.06.1971.

2. OFFENDING:

2.1 This matter deals with a charge brought against the Respondent under Rule 1004(1A) and 1004(3) & (4) of the New Zealand Rules of Harness Racing. It arises from a horse trained by the Respondent returning a positive test for the presence of a Prohibited Substance namely ‘Salbutamol’ at a race meeting held by the Auckland Trotting Club at Alexandra Park on the 13th December 2019.

2.2 The Respondent has admitted a breach of the rules in relation to a charge of presenting and racing a horse at the Auckland Trotting Club meeting by failing to present the said horse free of the Prohibited Substance namely ‘Salbutamol’.

2.3 The facts are detailed in the Summary of Facts which has been agreed to.

3. PENALTY PROVISIONS:

3.1 The penalties which may be imposed are fully detailed in the Charge Rule Penalty Provisions document.

4. SENTENCING PRINCIPLES:

4.1 The four principles of sentencing can be summarised briefly:

-Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense 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 offending in question.

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

4.2 The first three principals have relevance in this case.

5. PRECEDENTS:

5.1 In support of this penalty I will refer to previous decisions by the JCA which may be of some assistance.

RIU v C DALGETY (2nd breach) (9th February 2013 – 1 x Phenylbutazone positive. Total fine imposed of $6,000.

RIU v C DALGETY (3rd breach) (16 May 2017 – 5 x cobalt positive. Total fine imposed of $32,000.

6. MITIGATING FACTORS:

6.1 The Respondent has been involved in the Harness Racing Code for most of her adult life.

6.2 The Respondent has admitted her wrongdoing and assisted the RIU during the investigation.

6.3 There is no evidence to suggest that the offence was deliberate and designed to obtain a favourable financial advantage other than the treatment for the ailment and to care for the animal’s wellbeing.

6.4 It appears as if the Respondent has a low understanding of the withholding period concerning the presentation of a horse to race after being treated with drugs that might later be proven on analysis to contain ‘banned’ substances.

The RIU Veterinarian, Dr Andrew Grierson, in his e-mail dated the 21/01/2020 indicated, ‘the detection time is not the same as withholding time’. If a trainer is using Ventolin (Salbutamol) up to 2 days before a race, that would likely explain how it came to have a positive. He noted that the medication used for treatment are ’quite usual’.

6.5 The Respondent has taken steps to obtain further information and advice from professionals to assist her in caring for and administering treatment to horses under her care/control.

6.6 The Respondent employs 2 x full time staff and 3 x part time staff and their financial wellbeing dependent upon the Respondent not being disqualified from holding or obtaining a training licence.

7. AGGRAVATING FEATURES:

7.1 This is a second breach of the Rules by the Respondent concerning the finding of ‘banned’ substances in a horse under her care/control and presenting same to the races drug free.

In the first instance as reported in, (RIU v N A CHILCOTT – 12th September 2013), it was found that the degree of culpability was not high and she was duly fined the sum of $3,300.

As in all matters concerning the treatment of horse/s with medication duly sanctioned and directed by qualified/experienced Veterinarians, the onus is always placed on the Trainer to ensure that when that horse or horses are presented for racing at a later period, the horse must be ‘drug free’.

Precedents have been established to ‘hammer’ this message home to prevent the integrity of racing being placed in disrepute and to protect the public from financial loss and/or disadvantage.

The standard expected of trainers relating to prohibited substance.

The Prohibited Substance Rule imposes an absolute obligation on trainers, and where applicable the person in charge of the horse, to ensure horses are presented to race free of prohibited substances regardless of how the prohibited substance came to be present.

That standard is reflected in the following decisions (emphasis added):

a. In Coulson (1993) Racing Appeal Reports 605 it was stated: -

The problems about drug-free racing have been emphasised from time to time, and this Authority has repeatedly pointed out there is a heavy obligation on the part of those who bring their horses to a harness racing meeting to ensure that the rules in all relevant respects have been complied with, and we are satisfied that in this particular case the appellant failed to take adequate steps to ensure that the horse was in fact drug free.

b. In Nicholson (1994) Racing Appeal Reports 943 the Authority stated at 945: -

We say again what we have said before, and that is that those who are responsible for the training of horses or other animals in any racing code are subject to a very onerous obligation to ensure that the Rules of Racing, Harness Racing or Greyhound Racing, in relation to drug-related matters are firmly adhered to…

There is an obligation to ensure drug-free racing. …

There are two other things which I think need to be said. In a sense, this is repetitious, but it is essential that all concerned in the racing industry, in whatever code the person participates, understands that this Authority will not tolerate in any respect the use of substances which breach the Rules.

The Rules now are fairly clearly definitive of what the obligations of persons in the industry are, and this Authority sees it as part of its statutory responsibility to ensure that the Rules in this and other respects are adhered to.

There is nothing more likely to bring down the integrity of the racing industry generally than the fact that horses perform at meetings when they have been administered, whether innocently or for some ulterior motive, a prohibited substance.

c. In Lamb (1998) Racing Appeal Reports:

The duties on trainers are high and appropriately so. All reasonable steps must be taken to avoid the administration of drugs to horses being presented for racing. Proper care and vigilance are required at all times at the stables and at the track. Where there is a breach of the drug negligence rule trainers must expect substantial penalties.

d. In Bentley (1998) the Appeals Tribunal stated:

Because of the financial investing interests of the public in horse racing the integrity of the sport requires that the Rules of Racing have to be complied with to ensure fair competition. Fair competition requires that horses that are competing are free from any potential advantage that may be obtained through the involvement of drugs as defined by the Rules of Racing and this in turn requires a high degree of vigilance by licensed trainers. It is the duty of trainers to take all available steps to ensure there is no breach in this regard. A breach as a result of negligence must be viewed seriously by both Judicial Committees and by this Tribunal.

e. In Justice (2012) the Appeals Tribunal at [81] stated:

Once a breach is established, general deterrence and denunciation are appropriate in imposing penalty. There is a need to bring home to trainers/owners the heavy responsibility of presenting horses free of prohibited substances. Previous penalties have failed to do this, as illustrated in decisions such as Bentley.

f. In Scaife (2012) the Appeals Tribunal at [45] stated:

The parties agree it is imperative for the future of the industry that racing be perceived to be, and indeed is, drug free. To this end, in imposing penalty we believe the relevant considerations were correctly identified by the Appeals Tribunal in Ju (2012) when it stated at [81]:

Once a breach is established, general deterrence and denunciation are appropriate in imposing penalty. There is a need to bring home to trainers/owners the heavy responsibility of presenting horses free of prohibited substances.

7.2 The Respondent was reported in the newspaper 6/07/2013, “Chilcott pleaded guilty to five charges laid under the Agricultural Compounds and Veterinary Medicines Act, in that she attempted to import, was in possession of, or knowingly used an agricultural compound contrary to the act's provisions”. She was ‘Convicted and Discharged’.

8. CONCLUSION:

8.1 The RIU are mindful of the Appeals Tribunal ruling:

In RIU v Lawson - the Appeals Tribunal at [25] commented:

Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry/and those who are to deal with the profession. Disciplinary sanctions are designed for some important different purposes, and although guidance can be gained from the criminal jurisdiction, there are broader considerations.

The Harness and Thoroughbred racing "industry " is a profession where key participants are required to be licensed in order to practice in various ways within that sphere. Comprehensive rules of practice, behaviour, procedure and the like are set down in extensive detail in the Rules which govern the codes and behaviour. As with most professions, a careful internal disciplinary and regulatory process is set up. Those who practice within professions (whether law, accountancy, medicine, teaching, real estate, and the like) are subject to sanctions for breaches of standards of conduct or rules designed to protect members of the profession as well as the public. Such sanctions can at the highest end include removal from a profession for serious breaches of professional rules and standards involving dishonest or immoral conduct. Such behaviour if unchecked may greatly harm the reputation of the profession and "bring it into disrepute" – that is, the public loses.

8.2 The decision marks a clear shift in the approach in imposing sanctions for a breach of racing rules and correctly brings a disciplinary approach.

8.3 The RIU does not consider the Respondent to be a habitual offender and nor to be a person of low moral character that she would bring the Harness racing code to ‘disrepute’ should she remain in this profession.

8.4 The RIU believes however that breaches of the rules should be penalised and that such penalty should reflect the industry’s ‘clean racing’ image and to remind participants of their obligations under the rules and precedents set.

8.5 The RIU are seeking a monetary fine for this breach instead of seeking a period of disqualification as sanctioned by the Rules.

The sum of $8,400 would be deemed appropriate in this case.

Mr Westerlund advised that he had looked at a number of previous penalties, had averaged those and because this was a second breach had doubled the average and this resulted in a figure of $8,400.

8.6 PHOEBE IMPERIAL has already been disqualified by the JCA effective as of the 23rd January 2020 pursuant to rule 1004D (6) and the stakes money paid accordingly.

8.7 The RIU are seeking no costs.

Respondent’s Penalty Submissions

Miss CHILCOTT said that there may have been neglect in this situation. She remains very stringent about use of medication for her horses. She said that she had taken proactive steps to achieve this.

Miss CHILCOTT said that her case should be considered as being similar to the first Dalgety case referred to by Mr Westerlund and she thought that the drug in that case was more serious than the one in her case.

Miss CHILCOTT told the Committee that she is very remorseful and she said that the positive swab has caused her embarrassment and serious humiliation.

Reasons for Penalty

The Committee is mindful of the effect that positive swabs have on the integrity of the Racing Industry of both Codes.

The upholding of integrity and retaining of confidence of the betting public is paramount.

In arriving at an appropriate penalty, the Committee fully considered all the relevant factors as well as the submissions presented by the Informant and the Respondent. The Committee also viewed the JCA penalty guide and also viewed the precedent cases particularly those submitted by Mr Westerlund. The aggravating and mitigating factors were taken into account in our assessment of the Respondent’s culpability.

The Committee also recognised that our responsibility is to ensure that the purpose of proceedings as set out the Fifth Schedule of the HRNZ Rules were considered as part of our determination and those were: -

(a) To ensure racing is conducted in accordance with the Code Rules;

(b) To uphold and maintain the high standards expected of those participating in the sport of Harness Racing and the Harness Racing industry;

(c) To uphold and maintain the integrity of the sport of Harness Racing and the racing industry in general; and

(d) To protect the participants in the sport of Harness Racing being owners, trainers and the betting public.

The Committee also asked Mr Westerlund if he had spoken to the RIU Betting Analyst in relation to bets on the race in question. Mr Westerlund said he was advised that there were no unusual bets on PHOEBE IMPERIAL and in fact two of the owners of PHOEBE IMPERIAL had $10. each way on it. He presented to the Committee an email from the Betting Analyst concerning this race.

In assessing penalty we first look at the aggravating factors and they are: -

(a) The existence of a positive swab and the effect that it has on the integrity of Harness Racing. In general, positive swabs tend to lead people to think that significant betting is involved although this is not the case here.

(b) The loss of stake money to the owners of the horse.

The mitigating factors are however: -

(i) The fact that Miss CHILCOTT was given misinformation by the Australian vet although having said that six swabs out of seven were clear.

(ii) The fact that Miss CHILCOTT admitted the breach at the earliest opportunity;

(iii) The fact that there was no irregular betting activity on PHOEBE IMPERIAL.

At the end of the day Miss CHILCOTT could ask herself “what else could I do”. She took advice from an experienced veterinarian, she followed that advice, PHOEBE IMPERIAL had six clear swabs out of seven and there was nothing to alert her to the fact that there might be a positive swab.

Rule 1004(7) provides for penalties of a fine not exceeding $20,000.00 and/or a disqualification or suspension from holding or obtaining a licence for any specific period not exceeding five years.

In our view the circumstances in this case do not warrant disqualification and this is in fact recognised by the RIU which has asked for a monetary penalty.

We have looked at the previous cases submitted by Mr Westerlund, particularly the Dalgety case and in our view the circumstances here are quite different. We also note that it is seven years since Miss CHILCOTT’s last breach, and she is to be given credit for that.

We take the view despite this being Miss CHILCOTT’s second breach of the Prohibited Substance Rules her penalty should be less than that imposed upon Mr Dalgety.

Penalty Decision

We impose a fine of $5,500 on Miss CHILCOTT.

Costs

The RIU does not seek costs. This matter has been heard on a race day and accordingly we make no order for JCA costs.

DATED at Pukekohe this 12th day of February 2020

Bryan Scott - Chairman

Document Actions