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Non Raceday Inquiry RIU v R G M Burrows - Decision dated 21 August 2020 - Chair, J H Lovell-Smith

Created on 24 August 2020

BEFORE A JUDICIAL COMMITTEE

APPOINTED BY THE JUDICIAL CONTROL AUTHORITY

INFORMATION A7199

IN THE MATTER OF THE NEW ZEALAND

RULES OF HARNESS RACING

BETWEEN RACING INTEGRITY UNIT

SIMON ANDREW IRVING

RACECOURSE INSPECTOR

Informant

AND ROBERT GEORGE McKAY BURROWS

STABLEHAND

Respondent

Judicial Committee: J H Lovell-Smith

T Utikere

DECISION OF JUDICIAL COMMITTEE DATED 21 AUGUST 2020

[1] The Respondent, Robert George McKay Burrows, a licensed Stablehand under the Rules of HRNZ, faces the following charge:

On 13 March 2020 at Christchurch, together with Nigel Raymond McGrath did attempt to administer “Steel The Show” which was entered in Race 8 at the NZ Metropolitan Trotting Club’s meeting at Addington that evening, a prohibited substance by way of nasal gastric tube, in breach of the New Zealand Harness Racing Rule 1004(I)(1) and Rule 1001(2).

Rule 1004(I)(1) provides:

(1) A person commits a breach of the rules who administers a prohibited substance to a horse which is taken, or is to be taken, to a racecourse for the purpose of engaging in a race.

(2) A breach of sub-rule (1) is declared to be a serious racing offence.

Rule 1001(2) provides:

Every person who commits a serious racing offence shall be liable to the following penalties:

(a) A fine not exceeding $30,000; and/or

(b) Suspension from holding or obtaining a licence, for any specific period or for life; and/or

(c) Disqualification for a specific period or for life.

[2] The Information and charge wording is amended to the updated Rule 1004(I)(1).

[3] Mr Burrows advised the Judicial Committee by email dated 20 July 2020 that he wished to have nothing further to do with the “process” for financial and personal reasons.

[4] The Judicial Committee is therefore dealing with this hearing on the papers and on the basis that Mr Burrows does not admit the charge.

Standard of Proof

[5] The standard of proof is on the balance of probabilities (Rule 1008A of Rules, of Rule 31.1 of the Rules of Practice and Procedure for the Judicial Committee and Appeals Tribunal (JCA Rules).

Evidence for RIU

[6] Simon Andrew Irving.

Mr Irving’s evidential statement is set out in full as follows:

I, Simon Andrew Irving of Masterton, am employed by the Racing Integrity Unit Limited (RIU) as a Racing Investigator.

I have been appointed under the New Zealand Rules of Harness Racing (the Rules) as a Racecourse Inspector since 2014.

I am also appointed as an Investigator under the Rules of NZ Thoroughbred Racing and a Racecourse Investigator under the Rules of NZ Greyhound Racing.

Part of my role as a Racecourse Inspector is to investigate matters under the Rules.

On 13 March 2020 I conducted surveillance on a green shed located on the property of Nigel McGrath, 502 Maddisons Road, Christchurch.

At 5:40 pm I observed McGrath lead a horse from the covered yard at the end of the stable block and into the green shed.

A few minutes later I entered onto the property and walked to the shed.

I recorded my actions on my cellphone video.

The recording was later transcribed.

Located in the green shed was Mr McGrath, the horse now identified as ‘Steel The Show’, a male now identified as George (Robert) Burrows and a backpack containing tubing gear.

I was handed the backpack by Mr Burrows and then followed Mr McGrath and the horse toward the stable complex.

RIU staff Oscar Westerlund and Neil Grimstone entered onto the property and I informed them that an unknown male was in the green shed and needed to be spoken to.

A short time later I examined the contents of the backpack and observed a coiled rubber hose, a plastic funnel, a twitch and an empty 800ml plastic drink bottle containing residue and a towel cloth.

Mr McGrath refused to allow me to take the tubing kit for the purpose of analysis.

[7] Video recording – 502 Maddisons Road

13.03.2020

Present:

Simon Irving
Nigel McGrath
George Burrows
Neil Grimstone
Oscar Westerlund

The video recording, recorded the discussion which took place between Simon Irving and Nigel Raymond McGrath, who at the time was a licensed Public Trainer and Open Driver under the Rules of New Zealand Harness Racing (HRNZ), at Mr McGrath’s stables. On Tuesday, 13 March 2020, Mr McGrath was observed at 5:40 pm leading the 3yo colt ‘Steel The Show’ from the covered yard at the end of the stable block into the shed, approximately three hours prior to its scheduled race start time.

‘Steel The Show’ was engaged in Race 8 at the NZ Metropolitan Trotting Club’s meeting at Addington Raceway at 8:48 pm.

A few minutes later, Mr Irving entered the property and went to the shed where he located Mr McGrath and Mr Burrows, ‘Steel The Show’ and a backpack containing tubing gear including a coiled rubber hose, a plastic funnel, a twitch and an empty 800 ml plastic drink bottle containing residue.

Mr McGrath immediately walked the horse from the shed and when confronted by another investigator a short distance away, let the horse go which ran back to the stables. Mr McGrath admitted that the horse was ‘Steel The Show’ and that it was racing that evening. He then refused to answer further questions regarding the tubing gear and the identity of the other person present in the shed.

[8] Evidential statement of Neil Grimstone:

Neil Grimstone is the Manager of Integrity Assurance employed by the Racing Integrity Unit. He is also appointed under the HRNZ Rules as a Racecourse Inspector and part of his role as a Racecourse Inspector is to investigate matters under the Rules.

On 13 March 2020, Mr Grimstone was overseeing an investigation into the activities of Nigel McGrath, trainer, at his stable complex at 502 Maddisons Road, Christchurch. At approximately 5:45pm he entered onto Mr McGrath’s property. Also on the property were Racing Investigators Simon Irving and Oscar Westerlund. Mr Grimstone was advised that there was an unknown male that needed to be spoken to in the green shed on the property. Mr Grimstone went into the green shed and spoke to a male, who identified himself as George Burrows. Mr Burrows remained in the green shed and when questioned about the activity admitted that he and Mr McGrath were about to “tube” the horse “Steel The Show” which was racing that night with a substance he called “air supply” to assist with the horse’s breathing. Mr Burrows acknowledged that this was in breach of the Rules of HRNZ. When asked how many times he had been there to do this he said “very few.”

[9] This interview between Mr Grimstone and Mr Burrows was recorded on video cellphone by Racing Investigator, Oscar Westerlund which was later transcribed.

[10] A video containing images of the tubing kit contained in Mr McGrath’s bag which Mr Burrows had obtained from the washhouse inside Mr McGrath’s house was also recorded.

[11] On 17 March 2020 at 10:00am, Mr Grimstone, together with RIU member Peter Lamb, interviewed Mr Burrows again at Riccarton Racecourse which was recorded (Exhibit 5). This recording was later transcribed.

[12] In this interview, Mr Burrows gave a different account to the one he gave Mr Grimstone on 13 March 2020:

Mr Burrows said he went to Mr McGrath’s stable, he guessed at around 5:00 pm, to drop off a couple of bridles which he had arranged to do earlier in the day. Mr Burrows also claimed to have gone to a bar and “had a couple of drinks” earlier that day.

Mr McGrath told him he “was a bit worried about his horse, slight snotty nose and we got talking and decided to give it some air support.”

Mr Burrows said it was a “herbal thing” to help with their breathing that could be bought anywhere.

When asked how it could be given to the horse, Mr Burrows said “there’s different ways, squirt it down their throat or tube them or whatever. As long as it gets into their stomach.”

He and Mr McGrath went into the shed so they could not be seen because it was against the Rules. Mr Burrows got the bag from Mr McGrath’s house with Mr McGrath’s air support in it and then went under the trees to get to the shed so he could not be seen.

Mr Burrows said Mr McGrath normally had his tube, probably a twitch, the air support and his boost tubes to squirt it down within the bag.

When asked why he was helping Mr McGrath, Mr Burrows said probably because it was “quite a stroppy horse.” He maintained he administered the substance over the tongue with a boost tube with air support in it not with a tube. He agreed he could not be sure what he had given the horse but said he knew what air support smells like as it has got “a real strong eucalyptus smell and comes in a brown bottle.” Mr Burrows accepted he could not be sure what was administered to the horse.

Mr Burrows asked that his first statement be disregarded because he had been drinking and smoking weed and because he did not want to be there. He denied ever tubing a horse at Mr McGrath’s before.

[13] Dr Andrew Grierson

Dr Grierson has worked as a racing veterinarian for over forty years in both the harness and thoroughbred codes. He was appointed as NZTR and HRNZ Chief Veterinarian in 2004.

Dr Grierson’s statement is set out in full as follows:

Stomach tubing of horses on race day has a history in NZ and is what is called a ‘shake’ or ‘milk-shaking’.

The mechanics of tubing require a funnel and a rubber or plastic tube.

It usually requires two people as it can be difficult to hold the horse, and tip the mixture into the funnel and deliver down the tube.

It is easier to stomach tube a horse when the solution is unpalatable or larger amounts of fluid are used e.g. 1-3 litres than to administer by oral syringe.

A twitch may also be utilised to restrain the horse. A twitch is usually a stick-like handle with a loop of rope on the end which is wrapped around the upper lip of the horse and tightened.

Without a sample of what was administered or about to be administered by Nigel McGrath and George Burrows three hours before race start time, there is no way of knowing for sure what it was.

In my opinion what was stomach tubed is most likely a solution of chemicals for the purpose of alkalising the blood or increasing the TCO2 level.

Sodium bicarbonate is the most commonly used alkalising agent.

The timing and the amount would have been calculated to present a horse for races with a total carbon dioxide (TCO2) level just below the level of 36.0 millimoles per litre in plasma.

Tubing alkalising substances became a banned a practice when horses were seen to perform better than their ability.

Another substance with a history in NZ of being used close to racing is ammonium chloride but that is injected into the vein for its expectorant and diuretic properties on race day. It would be unusual to be stomach tubed as it can be irritant to the gastro-intestinal tract and that could counter performance.

Performance enhancing drugs such as EPO or peptides including the ovine derived SGF-100 that has been topical recently are all administered by injection into the blood stream.

Analysis

[14] There is no issue that on 13 March 2020 Mr Burrows together with Mr McGrath attempted to administer a substance to the horse “Steel The Show” approximately three hours before the horse was scheduled to race in Race 8 at the NZ Metropolitan Trotting Club’s racing at Addington Raceway at 5:48 pm or that he and Mr McGrath endeavoured to conceal their actions. Mr Burrows had collected Mr McGrath’s “tubing” bag from inside Mr McGrath’s house and accessed the shed from under the trees so he could not be seen.

[15] Mr McGrath had been observed by the RIU investigators at 5:40 pm leading the 3yo colt "Steel the Show" from the covered yard at the end of the stable block into the shed. Minutes later Simon Irving entered the property in his capacity as an RIU Investigator. When he went into the shed, he found Mr McGrath, Mr Burrows, "Steel the Show" and a backpack belonging to Mr McGrath containing a coiled rubber hose, a plastic funnel, a twitch and an empty 800ml plastic drink bottle containing residue.

[16] Mr Burrows admitted that he and Mr McGrath were about to tube “Steel The Show” with “air supply” to assist with its breathing. Mr Burrows acknowledged that this was in breach of the Rules. In response to the question how many times had he been there to do this, his answer was “very few.”

[17] We have considered Mr Burrows’ second statement on 17 March 2020 but find it to be unconvincing and self-serving. It was in our view a deliberate attempt on his part to discredit his first interview claiming that he had been drinking and had consumed two cannabis joints prior to going to Mr McGrath's stables that day.

[18] We accept the evidence of Simon Irving and Neil Grimstone as credible and reliable witnesses and accept Dr Grierson’s expert opinion that what was to be stomach tubed was most likely a solution of chemicals for the purpose of alkalising the blood or increasing the TCO2 which is a prohibited substance.

[19] Having considered the strength of all of the evidence, we are compelled to conclude on 13 March 2020 that Mr Burrows was in Mr McGrath’s shed with Mr McGrath, for the purpose of tubing the horse “Steel The Show” approximately three hours prior to its scheduled race start at the NZ Metropolitan Trotting Club's Meeting at Addington Raceway that evening.

[20] Taking all these matters in account, we are satisfied, on the balance of probabilities, that Mr Burrows attempted to administer a prohibited substance to “Steel The Show” on race day and what was to be stomach tubed was most likely a solution of chemicals for the purpose of alkalising the blood or increasing the TCO2 which is a prohibited substance. For these reasons we find the charge proven.

Submissions as to penalty

[21] We direct that submissions from the Informant and Mr Burrows as to penalty be emailed to the Chief Executive Officer of the JCA. Submissions from the Informant to be emailed within 5 days of the date of this decision. Submissions from Mr Burrows as to penalty to be emailed within 10 days from the date of this decision.

J H Lovell-Smith

Chair

21 August 2020

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