You are here: Home / Non race day hearings / Non Raceday Inquiry RIU v P McKenzie - Reserved Written Decision dated 16 September 2020 - Chair, Mr T Utikere

Non Raceday Inquiry RIU v P McKenzie - Reserved Written Decision dated 16 September 2020 - Chair, Mr T Utikere

Created on 18 September 2020

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR P McKENZIE

Respondent

Judicial Committee: Mr T Utikere (Chairman)

Mrs N Moffatt (Member)

Informations: A7190/A7191

Appearances: Ms E Smith (Counsel for the Informant) by AVL

Mr S Irving (from the RIU)

Mr P McKenzie (Respondent)

Hearing: 24 August 2020 at Awapuni Racecourse

RESERVED WRITTEN DECISION OF JUDICIAL COMMITTEE DATED 16 SEPTEMBER 2020

[1] The Respondent faces two charges that are outlined in Informations A7190 and A7191. They allege two breaches of Rule 804(2) of the New Zealand Rules of Thoroughbred Racing.

[2] Information A7190 specifically alleges: “That on the 8th June 2019 at Trentham Racecourse, being the registered trainer and person in charge of the horse, presented ‘HAPPY STAR’ to the Wellington Racing Club’s meeting for the purpose of engaging in and did engage in Race 6, failed to present the said horse free of the prohibited substance namely Cobalt, at an elevated level (>200ug/L) which is a prohibited substance of the type set out in Part A of Prohibited Substance Regulations, being a substance capable of acting directly or indirectly on the blood system”.

[3] Information A7191 specifically alleges: “That on the 15th June 2019 at Awapuni Racecourse, being the registered trainer and person in charge of the horse, presented ‘HAPPY STAR’ to the Manawatu Racing Club’s meeting for the purpose of engaging in and did engage in Race 7, failed to present the said horse free of the prohibited substance namely Cobalt, at an elevated level (>200ug/L) which is a prohibited substance of the type set out in Part A of Prohibited Substance Regulations, being a substance capable of acting directly or indirectly on the blood system”.

[4] Rule 804(2) states: “When a horse which has been brought to a Racecourse or similar racing facility for the purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, 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”.

PROCEDURAL MATTERS

[5] The Committee is in receipt of the Notice of Appointment, the Authority to Charge from the RIU’s General Manager, Mr M Godber, and the relevant Informations. There have been a number of Minutes (a total of 13 Minutes were issued prior to the Hearing set down for 24 August 2020) issued in relation to these matters, which dealt with pre-trial matters. The defended fixture proceeded in the presence of Mr McKenzie at Awapuni on Monday 24 August. In accordance with previous directions of the Committee some attendees appeared via Audio Visual Link (AVL) due to Pandemic and logistical considerations. Towards the conclusion of the in person hearing, Mr McKenzie sought leave to make further submissions in writing; his request was granted, and as we are now in receipt of those submissions (including writtens submissions from the RIU, and a further set of submissions from the Respondent in reply) we are now in a position to issue our Reserved Decision.

[6] At the commencement of the in person Hearing on 24 August, Mr McKenzie sought a further adjournment on the grounds of procedural fairness. He cited that he had inadequate time to review the disclosure he had received, along with a lack of opportunity to prepare and arrange for his expert witnesses to be present.

[7] As the grounds that he advanced were no different to those he advanced recently before the previous Committee Chair, Judge Lovell-Smith (as articulated in Minutes Nos. 9-12 dated 31 July, 4 August, 10 August and 18 August 2020), and for the fact that directions were made and timetabling set as part of the Procedural Conference held on 8 June 2020 (as articulated by Justice Gendall in Minute No. 6 dated 8 June 2020)  and confirmed on 30 June 2020 (as articulated by Justice Gendall in Minute No. 8 dated 30 June 2020); the application was declined.

THE HEARING

Ms Bronwyn Lavelle’s Evidence

[8] Counsel for the RIU, Ms Smith, called Bronwyn Lavelle to give evidence. She confirmed her written Brief of Evidence and identified herself as a swabbing official since 2011. On 8 June 2019 she had taken a post-race swab for the horse HAPPY STAR. She had her eyes on the horse at all times, including when the sample was obtained. She completed the Swab Card 135476 for the sample, which was sealed and numbered in front of the Stable Representative Mr Hussain, who also signed the relevant documentation. The sample was then stored in a locked fridge after which it was sealed in a courier bag before being handed over to the Chairman of Stewards, Mr Goodwin who signed for it.

[9] Ms Lavelle confirmed that she used the same process for a post-race swab for HAPPY STAR after it raced at Awapuni on 15 June 2020. The Swab Card for the sample on that occasion was 144264 and the same type of packaging was used, and the Chairman of Stewards, Mr Goodwin signed for it when he assumed custody at the end of the day.

[10] Under cross-examination she identified that she followed the RIU’s swabbing guidelines and believed that Mr Hussain understood what was occurring as he spoke English and that she had carefully explained the process and asked him if he was happy with the process. To clarify, under re-examination Ms Lavelle confirmed that she had no concerns about the cleanliness or state of the boxes used for the purposes of swabbing on both occasions.

Mr Neil Goodwin’s Evidence

[11] Mr Goodwin confirmed his Brief of Evidence and identified that he was the Chairman of Stewards on 8 June 2019 at the Wellington Racing Club’s Meeting at Trentham. It was his usual practice to direct that one or two horses from each race be sent for swabbing. In relation to the chain of custody for the samples taken on that day, he confirmed that he collected the swabs in a courier bag from the Swabbing Attendant and had custody until he personally delivered them to the Palmerston North Airport for dispatch. He produced an exhibit which identified that the swabs, including that of 135476, were lodged by him at the Airport on 10 June 2019.

[12] Mr Goodwin confirmed that he was also the Chairman of Stewards on 15 June 2019 at the Manawatu Racing Club’s Meeting at Awapuni. In relation to the chain of custody for the samples taken on that day, he adopted the same process and produced evidence to indicate that he had personally delivered them to the same location for dispatch on 17 June 2019. The exhibit he produced included that of Sample 144265.

[13] Under cross-examination, Mr Goodwin explained that the process he used was a standard procedure that was based on him taking charge of the swabs until they were dispatched, and that he had always taken them to the Airport personally. Whilst he did not believe there was a process or any regulations or rules around the process of specifically storing the samples whilst in his custody, he had been an RIU official since 1989 and believed that the process he had used over many years was satisfactory.

Mr Rob Howitt’s Evidence

[14] Mr Howitt confirmed his Brief of Evidence and that he has been with New Zealand Racing Laboratory Services (NZRLS) as it’s General Manager since 2013, with two years prior to that as a chemist. He had received a courier bag from Mr Goodwin on 11 June 2019, which contained sample 135476 within it.

[15] Upon receipt that sample had been checked for forensic integrity, and all seals were intact. He also confirmed that the sample bottles are tamper-evident and that there would be no cause for the sample to have been compromised. In relation to sample 135476, a sub-sample had been taken and sent to Eurofins in Wellington for Cobalt testing, as they had been sub-contracted to undertake the Cobalt testing.

[16] On 12 June 2019, Mr Howitt received confirmation that Eurofins had received sample 135476 and on 15 June 2019 he received a Report of Screening from them that had an initial reading of 517mg/L of Cobalt in the sample. Mr Howitt had then forwarded the Report to Mr Godber as a full confirmatory analysis was then required. The process then required that the Control Fluid was to also be analysed for a confirmatory analysis. Mr Howitt told the hearing that the Victoria Laboratory (RASL) was used for the confirmatory scope as they had a quick turnaround and was also accredited to the required Standard (Accredited for Compliance with ISO/IEC 17025 - Testing).

[17] Mr Howitt explained that urine sample 135476 would have been transferred into a security pouch for transport to RASL in Victoria. On 21 June 2019 he was advised by RASL that upon receipt of the sample the security pouch was partially unsealed but that the tamper-evident seal had not been compromised. He confirmed that the advice from RASL was that the adhesive on the pouch had failed and that it was a seal failure rather than any evidence that the seal had been manipulated. He referred to the three photographs provided by RASL to support this view.

[18] The RASL Certificate of Analysis (dated 3 July 2019) in respect of sample 135476 was presented to the hearing which confirmed a level of Cobalt of more than 200mg/L, where the threshold was 100 mg/L. The Reserve Sample for 135476 had been sent to the Chem Centre in Perth at the request of the RIU on 22 July 2019, with confirmation of receipt given on 25 July 2019. The reason for this was due to the partially opened nature of the security pouch that had been received for the Sample by RASL. The Chem Centre provided a Certificate of Analysis (dated 31 July 2019) in respect of the Reserve Sample which confirmed a level of Cobalt of more than 200mg/L, with the control fluid registering a level of Cobalt at less than 1mg/L.

[19] Mr Howitt explained that on 18 June 2019 he received the samples that Mr Goodwin had sent, which included Sample 144265. A sub-sample was poured off from it and was sent to Eurofins for Cobalt testing on 18 June 2019. On 19 June 2019, Mr Howitt received confirmation that Eurofins had received the 144265 sub-sample and on 28 June 2019 he received a Report of Screening from them that had an initial reading of 514mg/L of Cobalt. Eurofins then undertook a further analysis of the sample, which returned a reading of 509mg/L of Cobalt.

[20] Sample 144265 was then sent to RASL in Victoria for confirmatory analysis on 4 July 2019, where it was received on 8 July 2020 with all seals intact. The RASL Certificate of Analysis (dated 17 July 2019) in respect of sample 144265 was presented to the hearing which confirmed a level of Cobalt of more than 200mg/L, where the threshold was 100 mg/L, with the control fluid registering a level of Cobalt at less than 1mg/L.

[21] The RIU had requested that the samples that had been sent to Australia be returned to NZRLS, where they were securely stored with all seals intact. At the request of Mr McKenzie, the RIU directed that both samples be sent to his expert Mr Derek Major.

[22] On 20 July 2019, Mr Howitt had received a list of five items of feed and supplements from Mr Irving; and all five items were received the following day. AsureQuality were sub-contracted to test all five samples, and one known as ‘Hemoplex’ contained a higher level of Cobalt of 89.9mg per Kg. Mr Howitt commented that Hemoplex was ‘true to label’, containing 93% Cobalt salt and 7% from vitamin B12.

[23] Under cross-examination, Mr Howitt explained the detailed process undertaken at NZRLS with regard to its testing processes for those samples subject to Cobalt testing (the specific details of which are suppressed from publication in this Decision due to sensitivity and the need to maintain integrity in the testing process). Mr Howitt also confirmed that the test that was undertaken on the sample taken from the 8 June race meeting was a screening analysis test, not a confirmatory result. He also explained that the bag used for the transfer of sample 135476 to Victoria was part of old stock that was deficient as there was an issue with the bags’ seals.

[24] In response to a question about the delay in getting the sample to Dr Major in Australia, Mr Howitt explained that there had been confusion over biosecurity issues and that all samples had to be returned to New Zealand, for transfer to an Australian address that had the appropriate permit(s) to receive the sample. The Chain of Custody had also not been broken when samples were sent to Dr Major as he would have been in receipt of a letter from NZRLS which accompanied the samples.

[25] In response to questions from the Committee and Ms Smith, the witness explained that the security pouch had not been compromised because when the foil tape was removed, the word “Void” would appear, and that while the pouch was partially opened, the word ‘Void” was not visible. Mr Howitt also confirmed that he became aware of the Report from Eurofins (relating to sample 135476) on 16 June 2019 and advised the RIU via email straight away.

Dr Andrew Grierson’s Evidence

[26] Dr Grierson’s letter to the RIU of 18 August 2019 was entered into the record. This letter provided a veterinarian’s perspective on Cobalt and a professional opinion of the levels of Cobalt that are likely to be present where a 12mL injection of Hemoplex was administered outside of ‘one clear day’ along with Pro-Dosa Boost and Vetpro B Boosts oral pastes as well (Dr Grierson's Letter identifies the level of urinary Cobalt to sit at 4-500ug/L in a circumstance that Hemoplex was administered and that in his professional view the Boost items contain insufficient Cobalt to raise the urinary level over the 100ug/L threshold). Dr Grierson gave evidence about Hemoplex, the nutrients of which he said would be readily excreted through urine after injection.

[27] Under cross-examination, Dr Grierson identified that whilst the use of Cobalt might improve oxygen transportation and oxygen exchange, the Rules of Racing defined it as potentially causing an effect, and as such it was a prohibited substance. He also opined that as elemental B12 as a percentage of Cobalt was 5%, if the horse had been injected with B12 as the Respondent had, then Cobalt would be likely to be at a level below 100 mg/L eight to ten hours post-injection. Dr Grierson confirmed that there was no legal requirement to have information on any supplement bottles, but that there was an onus on trainers to be familiar with what they were giving to their horses.

[28] Under re-examination, Dr Grierson confirmed that he had Degrees in Veterinary Science and in Biochemistry and that his evidence was within the scope of his expectations and experience. He also confirmed that he regularly kept up to date as a veterinary practitioner.

Mr Simon Irving

[29] Mr Irving confirmed his Brief of Evidence and that Mr McKenzie was a licensed person at the time of the alleged offending. He also confirmed that the race meetings that took place at Trentham on 8 June 2019 and at Awapuni on 15 June 2019 were authorised by New Zealand Thoroughbred Racing (NZTR) under the Rules of Racing. The audio of the Interview between Mr Irving and Mr McKenzie at the latter’s property on 19 June 2019 was played to the hearing, with the transcript being submitted as an exhibit.

[30] Under cross-examination, Mr Irving confirmed that the purpose of his visit to the property was to speak to the trainer and to seize any exhibit(s) and seek out a response as to any possible substances on the property that may explain the Cobalt result. Mr Irving accepted that Mr McKenzie had shown some of the items to him and that investigators did not have to go searching for them; Mr McKenzie also submitted photographs of the range of supplements in situ at the property.

[31] Mr Irving had sent an email to the Respondent on 11 July 2019, pointing out Mr McKenzie’s rights under the Rules (specifically referring to Rules 208 and 210). Mr Irving confirmed that samples could degrade over time and whilst Harness Racing New Zealand (HRNZ) had provisions in their Rules for sample degradation, NZTR had not yet introduced that component into their Rules. Mr Irving also explained some aspects of the Cobalt testing criteria and other aspects that are sensitive to the integrity of the testing process.

[32] When challenged as to why he had authorised the Reserve Sample 135476 be sent for further testing, without Mr McKenzie’s consent being obtained previously, he said that the RIU believed as a safeguard it was prudent to send the Reserve Sample for testing. He believed the original Sample was still eligible as evidence, but as it could be challenged, albeit in his view not ‘fatally’, it was considered appropriate to send the Reserve for testing.

[33] In response to a suggestion from Mr McKenzie that the RIU could have advised him sooner of the testing results from the 8 June Meeting, hence potentially preventing HAPPY STAR’s second positive at the Awapuni Meeting; Mr Irving confirmed there had been previous occasions where horses had been stopped from racing due to indicative laboratory results and that there was no purposeful delay in advising the Respondent of the laboratory’s results.

Mr Bernard Saundry

[34] Mr Saundry gave evidence at the request of Mr McKenzie and had been directed by the Committee (as indicated in Minute No. 10 of Chair Lovell-Smith dated 4 August 2020). As that direction related to matters of relevance, the Committee permitted Mr McKenzie’s questions to be limited in scope to matters relating to the introduction of the Rules of Racing in New Zealand and clarity around NZTR’s obligations in following or incorporating directives of International Federation of Horseracing Associations (IFHA). The Committee was also in possession of copies of lengthy email correspondence between Mr Saundry and the Respondent around this issue.

[35] In response to questions from the Respondent, Mr Saundry confirmed that the NZTR Board was responsible for setting the Rules and that whilst they may, in doing so, take non-mandatory advice from IFHA, it was NZTR that was the Rule-making body in New Zealand.

Ms Naomi Selvadurai

[36] The Committee had previously directed that Ms Selvadurai’s Evidence was to be adduced in affidavit form (at para 10(b) of Minute No. 6 of Chair Gendall dated 8 June 2020). She is the Racing Operations Manager at RASL. Her evidence described the receipt of sample 135476 and that when it was received on 21 June 2019, the seal on the satchel (Numbered Z062223) was partially open. As a result, she observed that the seal did not say ‘Void Opened’ and that the satchel did not appear to have been tampered with.

[37] She believed the open section of the seal was approximately 4cm and it appeared that the glue did not hold the seal together. She also believed that the opening did not appear wide enough to remove the bottle that was contained within the security satchel. She also provided photographs of the unsealed section of the satchel.

The Respondent’s Evidence

[38] Mr McKenzie took issue with Ms Selvadurai’s evidence, citing it as her opinion and that she had no qualifications to comment on the matters relating to the integrity of the security pouch.

[39] He also said that he had no idea as to what was contained in his horses’ feed or supplements, but that it became clear to him through this process that he was being accused of doping HAPPY STAR. He explained that he obtained his first licence in 1960, some 60 years ago. He had used Mitavite and MacMillan feeds and supplements, which were not banned, nor did they have any withholding periods on them.

[40] Mr McKenzie explained that he never gave anything to his horses after 12am on the night of racing and that he strictly adhered to that approach. While he had furnished the Committee with much information on the history of Cobalt, he confirmed the view that there had been no recent research to prove the effects of Cobalt as it had a non-effect on the anaerobic system of a horse. He noted that the Rule had been one of strict liability and that the Rule and process had never been challenged, with previous JCA decisions being a litany of rhetoric, despite Cobalt not being performance enhancing on racehorses.

[41] He also queried the application of the relevant Rules and Regulations for the handling of samples from the swabs’ collection through to prosecution, as while HRNZ had such a provision, NZTR did not. NZTR was a signatory to IFHA, which the Respondent submitted had strict chain of custody considerations that should have been adhered to. In such a circumstance as this, Mr McKenzie submitted that the urine sample for 135476 was inadmissible and that it lacked credible value as evidence; therefore there was no case to answer.

[42] He also identified that NZTR had no Rules to cover the situation of the Reserve Sample being sent for further analysis at the RIU’s direction and that the RIU simply made up their own rules. While there were time limits in HRNZ Rules due to potential degradation of the sample, Mr McKenzie submitted that in accordance with WADA (identified in Respondent's Submissions as the 'World Against Drugs Association') guidelines the Reserve Sample belonged to the Respondent and that the RIU had never had a Reserve Sample tested on its own request.

[43] Due to a lack of chain of custody, misleading information given to him by Mr Irving about the potential degradation of the Reserve Sample and the use of outdated materials, the Respondent reconfirmed the submission that the evidence was therefore inadmissible.

[44] Mr McKenzie suggested that the Committee should not take a literal interpretation of the Rule, and that it should instead rely on s 37 of the Racing Act 2003 to deal with this matter as an aberration. He also referred to the House of Lords case law of Sweet v Parsley (Sweet v Parsley  [1970] AC 132) to suggest that there was no mens rea requirement to his offending as the substance made its way into his horse’s system by legal means and that they were independently available vitamin supplements that he sourced from Farmlands on a regular basis.

[45] In response to questions from Ms Smith, the Respondent confirmed that he was the licensed trainer of HAPPY STAR at the time, and that the Race Meetings at Trentham and Awapuni on 8 and 15 June 2019 were conducted in accordance with the Rules of Racing. He did not accept that the sample testing results were permissible as they could not rely on proven evidence. He confirmed that he had injected Hemoplex into the horse known as HAPPY STAR on the day before the races, but did not accept that it would give rise to a Cobalt result. This was despite the Hemoplex product having “Restricted Vet Medicine” and “Cobalt Gluconate” listed on it.

CLOSING SUBMISSIONS

[46] Towards the end of the Hearing, Mr McKenzie then sought leave to file his closing submissions in writing. The Committee granted leave for him to do so.

[47] In a 69 paragraph document (labelled as "Memorandum to Committee following Hearing 24 August 2020 at Awapuni") filed by Mr McKenzie, he outlines his closing submissions amongst a repetition of the evidence he presented in person. His submissions touch on the legitimacy of the forum within which the two charges are currently being considered along with his own enquiry into Cobalt and the history of Cobalt prosecutions in racing jurisdictions.

[48] It is clear from his submissions that he has referenced a range of scientific connections to support his view which questions the origin of the inclusion of Cobalt within the NZTR Rule (lbid., at Para 4). Mr McKenzie ‘s submissions also reiterate the strong view that there is no science behind a reference to Cobalt as a performance-enhancing substance.

[49] He also identifies that the RIU ought to have known that HAPPY STAR would be running with elevated Cobalt in his system at Awapuni, following their receipt of the initial results from the Trentham Sample, so they bear some responsibility as he should not have been permitted to run.

[50] To summarise, the Respondent submits that the charges should be dismissed. The reasons (lbid., at Para 41) for this is that in relation to the 8 June 2019 HAPPY STAR sample(s), there was:

A. No chain of custody in accordance with IFHA or best practice;

B. Misleading information given to the Respondent from Mr Irving about the degradation of the sample;

C. Use of out of date materials for the transportation of urine swab samples;

D. Faulty product use resulting in admissible evidence;

E. Use of a Rule from another jurisdiction by the RIU to mislead the Respondent to not use an entitlement available to him;

F. Utilisation of the Reserve Sample for the benefit of the Prosecution to disadvantage the Respondent;

G. Delays in getting the samples to the Respondent’s experts in Australia; and

H. Uncooperative behaviours by not providing the Respondent with full disclosure in a timely manner.

[51] For the RIU, Ms Smith filed comparatively brief Written Submissions in response. They included the view that it was not the Committee’s responsibility to determine whether Cobalt is in fact performance-enhancing, rather that it was capable of having a particular effect on mammalian body systems.

[52] In response to the case law around the requirement for mens rea offered up by the Respondent, Ms Smith submitted that the current breaches related to an industry code consideration, not that of criminal legislation, and as such Sweet v Parsley was not relevant. Likewise, her submissions suggested that it was not suitable for the Committee to engage s 37(2)(a) and (e) of the Racing Act 2003 as Cobalt was currently an active issue for the relevant Code’s Board.

[53] Counsel also sought non-publication Orders relating to some aspects of the Cobalt testing process that were identified during the hearing, in order to protect the integrity of that process.

[54] In response, Mr McKenzie filed a further response which reinforced his views on specified matters, in addition to objecting to the Non-publication Orders sought for the reason of maintaining integrity within the industry.

REASONS FOR DECISION

[55] The Respondent faces two charges of a breach of Rule 804(2) of the Rules of Racing. The relevant substance in these matters is that of Cobalt. The onus is on the RIU to prove both Informations to the requisite standard, which in these matters is that of the Balance of Probabilities.

[56] The following facts are not in dispute:

(a) The horse HAPPY STAR was presented to, and did race, at Wellington Racing Club’s Meeting on 8 June 2019 and at Manawatu Racing Club’s Meeting on 15 June 2019. With both of those Meetings being lawfully constituted under the Rules of Racing;

(b) That Mr McKenzie was the Licensed Trainer for the horse on both occasions.

[57] The other two elements of the charges that the RIU are required to prove are:

(a) That HAPPY STAR tested positive for Cobalt in its system at a level above the threshold of 100ug/L on both the 8 June 2019 and 15 June 2019;

(b) That Cobalt is a Prohibited Substance under the New Zealand Thoroughbred Rules of Racing.

[58] Mr McKenzie has provided an extensive range of materials as part of the consideration of these charges.

[59] The Committee has carefully considered the materials and submissions relating to the history of Cobalt and its performance enhancing nature provided by the Respondent. However, the Committee has found that such information is not relevant for the purpose of determining the Informations currently before us.

[60] Mr McKenzie also believes he has been deprived of natural justice due to decisions of the Committee to decline his adjournment applications. As mentioned earlier, the reasons for those decisions have been outlined in the Minutes previously issued, so it is not the intention of the Committee to elaborate any further on those matters. On the Respondent’s submission regarding the legitimacy of the Committee and the hearing; we are satisfied that the Committee has been appropriately appointed and constituted by the Judicial Control Authority (JCA).

[61] We are also satisfied that the sample numbers 135476 from 8 June 2019 and 144265 from 15 June 2019 were appropriately taken by Swabbing Official, Ms Lavelle for the horse HAPPY STAR. This is supported by the Individual Sample Identity Records for each sample being made available to the hearing and there is nothing to suggest that there were any irregularities in the swabbing process. Those individual samples were suitably delivered to the Palmerston North Airport for dispatch to NZRLS by Mr Goodwin and the relevant Dispatch Records have been entered into evidence. Once received by NZRLS, the testing process includes that a selection, but not all, of the urine samples taken on race day are subsequently sent for Cobalt-specific testing. We are satisfied that the subsequent transfer and testing process between NZRLS and Eurofins is also without issue.

[62] It is clear that in relation to Sample 135476, the security satchel Z062223 had a partially opened seal upon arrival at RASL in Victoria. We accept the evidence of Ms Naomi Selvadurai, including the photographs appendices to her evidential statement. She is highly qualified and has been in her current role since 2013. We accept that whilst a 4cm opening did exist, it was insufficient to remove the bottle containing the sample and accept Ms Selvadurai’s evidence that the bottle itself had not been tampered with. This is also consistent with the lack of a “VOID” statement being visible with the partially opened seal. For these reasons, we form the view that the Chain of Custody is sound and not in issue.

[63] Mr McKenzie has suggested that the RIU overstepped the mark, or created their own Rules in having the Reserve Sample 135476 tested at their own request. He has implied that in the context of the current circumstances, the Reserve Sample is the property of the Respondent. We disagree. What must be considered is the purpose for which the Reserve Sample exists. In the context of this situation, it is to provide an alternative testing for the sample in circumstances where the first sample has been tested but the Reserve may be tested as an option to provide a further independent assessment, regardless of who initiated the request. Whilst we accept that it would be rare for the prosecuting agency to request that, what must be considered is the circumstances.

[64] In this circumstance, a pouch that arrived at a Laboratory was partially opened, and therefore a decision was made to then have the Reserve tested at a different laboratory which is accredited to do so under the relevant Standard(s). We do not consider that to be unreasonable. Nonetheless, we must still be satisfied that the testing process of the Reserve Sample is robust and free from interference. We form the view that there is nothing to suggest that was not the case for the testing of the Reserve Sample 135476 by the Western Australia laboratory. Accordingly, based on the evidence, we form the view that the level of Cobalt in both samples were above the threshold of 100ug/L.

[65] In relation to any suggestion that the RIU may have been ‘sitting’ on information about HAPPY STAR’s initial positive result and purposely did not inform Mr McKenzie prior to the horse backing up at the Awapuni Meeting one week later; that is not a credible suggestion. We accept that Mr Howitt forwarded the results to the RIU as soon as he became aware of them, which was on 16 June 2019.

[66] Mr McKenzie argues that he did not know there was Cobalt in the supplements he was feeding HAPPY STAR. It is clear that ‘Hemoplex’ contains Cobalt gluconate. He admits injecting it the day prior to racing, so it is clear as to how it got into the horse. We also note that Hemoplex carries a ‘Restricted Vet’ message on it, and as such this should serve as a warning to trainers or others who may use it. We also agree that there is an obligation in licensed trainers to be aware of what they are giving to their horses as part of their feed and supplement regime. Previous decisions of the JCA have re-iterated this expectation as a professional obligation of being a licensed person.

[67] Much of the Respondent’s submissions relate to the status of Cobalt and its ability to be performance enhancing. Quite simply, the role of this Committee is to consider whether it is a substance that is classified as Prohibited under the Rules, not the merits or otherwise of its definition as a Prohibited Substance. It is clear to us that as Cobalt is capable of having a particular effect on mammalian body systems, it falls within the definition of a Prohibited Substance under the Rules of Racing.

[68] On the issue of Strict Liability and a requirement, or otherwise, for the absence of mens rea; the current breaches relate to a code consideration, not a jurisdiction that is criminal in nature. Therefore, Sweet v Parsley is not relevant. We also consider it is not appropriate for us to entertain the discretionary exercise of any powers contained in s 37 of the Racing Act 2003 in relation to these charges. The reason for this is that in relation to the status of Cobalt, NZTR have already turned their minds to the issue.

[69] Based on our assessment of the evidence, the RIU have discharged their duty of proving the elements of the charge(s) identified in Paras [56] and [57] above to the required standard.

DECISION

[70] Both charges as outlined in Informations A7190 and A7191 are proved.

NON-PUBLICATION ORDERS

[71] The Committee considers it appropriate, in order to protect the integrity of some sensitive aspects of the testing process, to grant the RIU’s non-publication order. Accordingly, any information relating to the Cobalt-testing process is suppressed, except for what is specifically mentioned in this Decision.

FURTHER DIRECTIONS

[72] The RIU has included Penalty Submissions in their Memorandum dated 24 August, which Mr McKenzie confirmed at the hearing that he was in receipt of. The RIU are directed to submit their submissions on any costs sought (including an itemised breakdown) to the Executive Officer of the JCA, no later than 4.00pm on Friday 18 September 2020. If Ms Smith wishes to file any supplementary Penalty Submissions to those contained in her 24 August Memorandum, the same timeframe will apply. The Executive Officer will then forward them to the Respondent.

[73] Mr McKenzie is then directed to file his Penalty and Costs Submissions in response with the Executive Officer of the JCA, no later than 4.00pm on Friday 25 September 2020.

[74] Under the provision of Rule 804(8), the mandatory disqualification of HAPPY STAR from both races must follow. Such an Order will be made when the Committee issues it’s Penalty Decision. The RIU is invited to make any submissions as to the date upon which such a disqualification may take effect. Such submissions, if any, can be contained in the Submissions that are to be filed in accordance with para [72] above.

Signed at Palmerston North this 16th day of September 2020.

Mr Tangi Utikere

Chairman

Document Actions