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Non Raceday Inquiry RIU v S R Wilson and C Wilson - Reserved Decision dated 20 August 2020 - Chair, Mr P Knowles

Created on 21 August 2020

BEFORE A JUDICIAL COMMITTEE

APPOINTED BY THE JUDICIAL CONTROL AUTHORITY

HELD AT ASCOT PARK RACEWAY INVERCARGILL

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT

INFORMANT: Mr P Meulenbroek - Racecourse Investigator

AND

RESPONDENTS: Stanley Ross Wilson and Chris Wilson – Public Trainers

Judicial Committee: Mr P Knowles (Chairman)

Mr N Skelt (Member)

Information No’s: A4831 and A4832

Plea: Admitted

RESERVED DECISION OF JUDICIAL COMMITTEE DATED 20 AUGUST 2020

Licensed Co-Trainers Mr Ross Wilson and Chris Wilson are jointly charged with two breaches of the Rules relating to a positive Cobalt result for their horse IDEAL ROBYN.

The charges are as follows:

Information A4831

That on Saturday the 6th June 2020 at Invercargill Stanley Ross Wilson and Chris Wilson were the licenced Trainers of the horse “Ideal Robyn” which was presented for and raced in Race 11 the Fast Track Insurance Mobile Pace 2200m, at a race meeting conducted by the Invercargill HRC, when the said horse was found to have a Prohibited Substance in it, namely Cobalt at a level over 100mcg/ug, being an offence under the provisions of Rules 1004A (2) and 1004A(4) and punishable pursuant to Rule 1004D(1) of the Rules of Harness Racing New Zealand.

Information A4832

That on Saturday the 6th June 2020 at Invercargill Stanley Ross Wilson and Chris Wilson were the licenced Trainers of the horse “Ideal Robyn” which was presented for and raced in Race 11 the Fast Track Insurance Mobile Pace 2200m, at a race meeting conducted by the Invercargill HRC, when the said horse had been provided a substance containing Cobalt by Ross Wilson the day before racing, being Friday 5 June 2020, being an offence under the provisions of Rule 1004C(3) and punishable pursuant to Rule 1004D(1) of the Rules of Harness Racing New Zealand.

The relevant Rules read:

Prohibited Substance Rule 1004A

(2) A horse shall be presented for a race free of prohibited substances

(4) When a horse is presented to race in contravention of sub-rule (2) or (3) the trainer of the horse commits a breach of these Rules.

One Clear Day Rule 1004C

(3) A person shall not provide to a horse on the day of racing before it has left the racecourse after racing, or one clear day prior to racing, any feed that had added to it a substance containing bicarbonate or other alkalising agent, Cobalt, or a prohibited substance in addition to that included in a commercial feed or produce by a feed merchant.

Sanctions 1004D

(1) A person who commits a breach of a rule in rules 1004A, 1004B, or 1004C shall be liable to:

(a) a fine not exceeding $20,000.00; and

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

The Prohibited Substances Regulation {4} states:

The following substances are not prohibited when present at or below the following threshold:

4.11 Cobalt at a concentration at or below 100 micrograms per litre in urine.

Rule 1008

In the absence of any express provision to the contrary in any proceeding for a breach of the 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 the Rule shall be considered as an offence of strict liability.

Mr Meulenbroek produced written authority from the General Manager of the RIU to lodge the Informations.

Mr Ross and Mr Chris Wilson admitted both charges and appeared at the hearing.

RIU Summary of facts

1. There was an agreed summary of facts.

2. The Respondents Stanley ‘Ross’ Wilson and Chris Wilson are a father and son training partnership operating out of Whiterig, Gore, since 2019. From 1980 Stanley Ross Wilson trained under his own name.

3. In June 2019 Ross Wilson was spoken to by a Racing Investigator following a high post-race Cobalt reading of 97 micrograms per litre of urine (mg/L) from one of his horses. He was again spoken to on 29 May 2020 when another horse returned a high Cobalt result of 76mg/L.

4. Mr R Wilson believed that these two high Cobalt results came about because both horses concerned were kept in the same paddock, onto which he had applied a load of excess fertiliser some three years prior.

5. Mr R Wilson wasn’t overly concerned at the May 2020 result as he believed it confirmed that the levels of Cobalt had been reducing, which he had been told by his fertilizer consultant would happen at a rate of approximately 10% per annum.

6. At each of these prior visits Ross Wilson was warned that he needed to take care with the feeding of his horses and advised to review his current practices.

Information A4831 – Presentation of horse with Excess Cobalt

7. IDEAL ROBYN is a 3-year-old bay gelding Standardbred owned and trained by the Wilson partnership. As at 6 June 2020 IDEAL ROBYN had 4 race starts for no placings.

8. IDEAL ROBYN was correctly entered and presented by Mr Wilson to race in Race 11, the “FAST TRACK INSURANCE MOBILE PACE 2200m” at the INVERCARGILL HARNESS RACING CLUB meeting on 6 June 2020 at Ascot Park. The horse finished 7th.

9. As a participant in the race the horse was eligible to receive $200. The Stakes money has since been forfeited and the horse disqualified.

10. IDEAL ROBYN was post-race swabbed and a urine sample was taken after it entered the swab box at 4.48 pm in the presence of Mr Wilson. The sample was recorded with the swab card number 154790.

11. On the 24 June 2020 Eurofins ELS Limited laboratory in Wellington supplied an Analytical Report which showed that the sample had returned a Cobalt screening result of 168mg/L. A second screening test carried out by ELS returned a reading of 162mg/L.

12. On 29 June 2020 Racing Analytical Services Limited (RASL), an accredited laboratory in Victoria Australia issued a Certificate of Analysis for sample 154790 that showed a result of 153mg/L.

13. These results are a breach of the Prohibited Substance Regulations as contained in paragraph 4.11 of the New Zealand Rules of Harness Racing 2019 which specify that Cobalt is only permitted when present at a concentration at or below 100mg/L.

14. On 1 July 2020 RIU Investigators visited the training stables of Mr Wilson. He was advised of the positive swab result and given a copy of RIU Sample Identity Card 154790 and copies of the ESL laboratory results report.

15. Mr Wilson was advised of his right to have the B sample re-tested but elected not to have this done, stating that he trusted that the results would not be significantly different.

16. An inspection of the stables area revealed several food and supplement sources containing Cobalt including McMillan’s Premium Plus Feed Mix, Formula 5 Mineral chelates and Ironcyclen.

17. Mr Wilson offered that it must have been the result of the horse licking and ingesting Cobalt from the soil. He said that Ideal Robyn ingested a lot more dirt than the other horses through eating dirty hay and licking the soil and he couldn’t think of any other way in which the results could have been obtained.

18. Samples were obtained from the supplements and soil samples were taken from the paddock in which IDEAL ROBYN had been kept and sent away for analysis. The results indicated a Cobalt content in both soil samples of about 3.7mg/kg and 6.1mg/kg of Ironcyclen but a high Cobalt content in the Formula Five Chelates supplement at 5,065 milligrams per kg, when in an undiluted state.

19. The Formula Five Chelates label details a product for cattle, sheep and goats and directions that the 1 litre bottle should be diluted with 19 litres of water before administration.

20. Wilson stated that he gives his horses 5mls of Formula Five direct via oral syringe 5 days before racing in an undiluted form, mainly for selenium.

21. A further urine sample was obtained from IDEAL ROBYN on 2 July 2020 and sent away for Cobalt analysis. That resulted in a reading of 5.7, even when it had still been provided Ironcyclen the day before.

22. Mr Wilson explained that since the only difference was being taken out of its paddock and kept in a stall overnight, that this was evidence that the excess Cobalt was due to the horse licking and ingesting dirt from the paddock rather than being due to any other source.

Information A4832 – One Clear Day Rule

23. Mr Ross Wilson admitted that he fed Ideal Robyn the evening before racing, being Friday 5 June, and that meal included a 30 ml dose of Ironcyclen supplement squirted onto the feed. He said this was still well below the recommended dose of 60 -80mls.

24. Wilson said that he did not even realise that the Ironcyclen had Cobalt in it, as the only supplement he wanted from the product was the iron.

25. The Ironcyclen supplement contained 6mg of Cobalt per litre, as was detailed on the container label.

26. Rule 1004C(3), being the One Clear Day Rule in Harness Racing states that no horses shall be provided any feed that has added to it Cobalt at least one clear day prior to racing, in addition to that included in a commercial feed or produce provided by a feed merchant.

27. One Clear Day prior to racing means the 24-hour period before 12.01 am on the day the horse is to race and includes the day of racing, with effect from 25 November 2019.

28. With respect to the Ironcyclen fed to the horse the night before racing Mr Wilson said he had been feeding his horses the same way for 40 years and that every horse got the same feed each day. He said that every other trainer he knew would feed the same way and he hadn’t been aware that he shouldn’t be providing the Cobalt containing supplements, as he thought the impact of the Cobalt would be minuscule.

29. Mr Wilson said he did not know of the Rule changes that had been implemented in November 2019. He is not very computer literate and no one had been talking about it.

30. Cobalt is an essential trace element required for life through the actions of Vitamin B12 of which Cobalt makes up about 5% of its weight. Cobalt is absorbed from the gut either as elemental or incorporated in Vitamin B12. A horse’s minimum daily requirement is approximately 0.5mg per day.

31. In theory an increase in Cobalt creates more red blood cells which means a greater ability to carry oxygen and maintain higher performance levels for longer so boosting endurance. There is however considerable debate that Cobalt has any positive effects on performance, and it can cause serious side effects at elevated levels.

32. Mr Ross Wilson has been involved as a harness trainer since 1978. He has had no prior convictions for these types of offences. His son and fellow training partner Chris has been in partnership with Ross since 2019.

Additional information supplied to the hearing

33. The RIU submitted a paper from the Chief Veterinarian for HRNZ Dr A Grierson which contained an opinion on the analysis of the samples supplied to the Laboratory for testing and queries raised by Mr C Wilson.

The relevant points are:

34. From the Assure Quality Certificate of Analysis report 190624 of samples taken from SR & CJ Wilson’s stable, Ironcyclen had a 6.1mg/kg of Cobalt in the formulation, McMillan Feed 0.32mg/kg, Formula Five 5065 mg/kg and the soil sample [1] 3.6mg/kg and sample [2] at 3.8mg/kg.

35. In the email communication from Chris Wilson to you dated 25th July 2020 Chris describes how as little of 50mg of soil would provide 0.18mg or 180ug of Cobalt in Ideal Robyn’s diet. So, would 30mL of Ironcyclen or 562gm of McMillan horse feed provide 0.18mg Cobalt?

36. But these levels of Cobalt are low and would not result in a positive urinary sample in excess of 100ug/L. In fact feeding 4kg (1.28mg Co) or more of McMillan horse feed on raceday would not result in a positive sample in excess of 100ug/L.

37. In contrast 0.036mL of Formula Five has 0.18mg of Cobalt. In the manufacturer’s website Phoenix advise using the product after making a 1:19 dilution with water. The recommended adult cattle dose is 2.5mL of concentrate. Horses require very low levels of Cobalt compared to cattle, yet Ideal Robyn was administered 5ml weekly or 24mg Cobalt equivalent to 48 days of his 0.5mg/day requirements.

38. However, the excretion of excessive levels of Cobalt from the body by a horse occurs rapidly, and if a weekly treatment of 5mL was stopped at least five days before racing that administration would not produce a positive either.”

Submissions by the Respondents

Information A4831

39. Mr R Wilson stated he had been a sheep farmer for many years. He said the land he farmed had been Cobalt deficient and he included Cobalt in his fertiliser on a yearly basis.

40. He said the normal practice was to dump the fertiliser’s in a pile and add additional Cobalt as required. It was then mixed and spread. What was left over he spread on his paddocks where he kept his horses. He didn’t realise it would do any harm.

41. After he’d been advised of other high Cobalt readings by the Racecourse Inspector he had spoken to his own vet about the problem and had not used Cobalt in the fertiliser for a number of years.

42. He believed it was the Cobalt content in the soil that was the contributing factor in Ideal Robyn’s high Cobalt return. He said the horse was a “guts” at feeding time and would eat soil to get the last of the hay.

43. He also felt that racing during the winter in Southland, for the first time the horse had been in full work, which may have been a factor. The main reason he gave the horse Ironcyclen was for the iron content.

44. Mr C Wilson stated he believed that all the research that had been done with Cobalt centred on herbage (grasses) and not soil. He felt the samples that they had had tested showed that Cobalt could increase in the soil.

45. He said there was also a lack of communication for people who did not have knowledge or access to computers.

Information A4832

46. Mr R Wilson stated he wasn’t aware of the rule. He’d been feeding supplements to his horses in the same way for many years and the dose he gave Ideal Robyn was below the recommended dosage. Since being told he had changed his feeding and hay procedures for all his horses. However, he did say that it raised the issue of what to feed a horse as many feeds contained Cobalt.

RIU PENALTY SUBMISSIONS

AGGRAVATING FACTORS.

47. The RIU submissions point to what are considered to be aggravating factors. These are:

48. The Wilsons had 2 recent prior warning visits from RIU Investigators following high, (but below the threshold of 100), Cobalt readings in other horses at their stable after post-race swabs.

49. The first was in June 2019 where their horse returned a Cobalt result of 97, being very close to the 100-threshold allowed, and where they were advised to consider a change to their feeding regime.

50. In May 2020, just a week before this matter occurred, the Wilsons received a second visit after a second horse returned a Cobalt result of 75.

51. Despite these visits Ross Wilson did not significantly alter his feeding regime, nor seek immediate veterinarian advice on the effects of Cobalt in the supplements he was giving his horses, which he had been using for many years. His firm belief was that the high Cobalt results only resulted from soil licking and ingestion of dirty hay by the horses, which had been kept in one particular paddock and onto which he had applied left over fertiliser 3 years earlier.

52. As he believed the Cobalt content in the soil was reducing over time, as evidenced by the drop from 97 to 75, and based on what he had been told by a fertiliser consultant, he was not overly concerned at continuing high levels and he did not consider that the other supplements could be a significant contributor.

53. In the current matter his horse IDEAL ROBYN was kept in a separate paddock, yet Ross and Chris Wilson still maintained their belief that the excessive Cobalt result was thru the horse licking and eating dirty hay.

54. After the June 2019 visit Ross Wilson did not seek to have his soil tested.

55. He continued to give his horses other supplements and feed mix, at least 3 of which contained Cobalt.

56. One of the supplements applied to horses via oral syringe 5 days before racing is Formula Five Mineral Chelates. This is labelled as providing trace element supplementation for cattle, sheep and goats and the directions include a requirement to dilute the 1 litre bottle in 19 litres of water. Ross Wilson said he gives the horses 5 mls undiluted.

57. Rob Howitt, General Manager of NZ Racing Laboratory Services, said on 27 July 2020 that the Formula Five supplement used contains 6 mg/ml of Cobalt (as labelled on the container) and if administered at 5 mls undiluted this would be a dose of around 30 mg or 30,000 micrograms.

58. The Ironcyclen supplement, which contains some Cobalt was provided with the meal the night before racing, as has happened with every meal for every horse, until now.

59. There has been much publicity and discussion about Cobalt in both the Harness Racing Code and the Thoroughbred Code in New Zealand and Australia in recent years which should have put all licensed persons on notice. Trainers should be alert to the risks that necessarily could arise from accidental exposure to excessive Cobalt.

60. When using commercially supplied substances that are labelled as containing substances which are prohibited at certain thresholds, as is the case with Cobalt, it is incumbent upon trainers to ensure that they use only in such quantities as to remain below the permitted levels and to refrain from providing any Cobalt additives to feed at least one clear day before race day.

61. Unless the Respondents take steps to review their feeding regime there is every chance that there may be a repeat case at some future date. Mr Howitt said that in respect of soil samples taken from Ideal Robyn’s paddock by the RIU investigators after the breach that the Cobalt content results were not high and were at the lower end of the scale, so a continued belief in that as the predominant contributory factor could be risky.

MITIGATING FACTORS: -

62. The RIU accepts that there was no intent to elevate the levels of Cobalt in IDEAL ROBYN.

63. The Wilsons accepted the results of the testing and have been fully cooperative throughout the investigation.

64. The Wilsons have admitted guilt and liability at the earliest opportunity.

65. The Wilsons have an extensive history of involvement within the Industry over 40 years with no prior offending.

66. Ross Wilson has now amended his feeding regime to preclude Ironcyclen in meals the evening before racing, and now brings his race horses inside to stable overnight rather than leaving them in their paddocks outside.

67. The level of 153 mcg is considered to be at the ‘lower’ end of the scale in terms of readings when compared to other results recorded in JCA hearings – high range being 640 ug/l (RIU v O and S) and ‘low range’ being 120 ug/L (RIU v Hale).

68. The Respondents Stanley ‘Ross’ and Chris Wilson are a licensed Public Trainer partnership since 2019 under the New Zealand Harness Rules of Racing.

69. Ross Wilson has been involved in the racing industry for over 40 years and has been a trainer since 1978.

70. Ross Wilson is 69 years old, and is the principal trainer, assisted by his son Chris who joined the partnership one year ago.

71. It is submitted that a fine of $10,000 is appropriate.

RESPONDENTS SUBMISSIONS

72. Mr R Wilson stated he had been in the industry for 40 years and this was the first time he had been charged with this type of offence. There was never any intention on his or his son’s part to gain an advantage. He was retired and on a limited income.

73. Mr C Wilson stated that they accepted there was some degree of negligence on their part, but it was unintentional. They accepted that there would be a penalty and cited the case of RIU v A 2020 ($5,000) as a fair penalty.

REASONS FOR DECISION

74. The aggravating features are that on two previous occasions the RIU had been in contact with the co-trainers and advised them of two high Cobalt readings (Robyn’s Playboy - 97.2mgL and Von Art -75.9mgL) in the 12 months prior to Ideal Robyn’s high Cobalt return (153mgL). While Mr R Wilson had spoken to his vet regarding both high readings they had not taken any significant steps to change the feeding regime.

75. Following the high return for IIDEAL ROBYN they did take steps to find out whether or not the soil held a high level of Cobalt which could have affected the high reading.

76. However, this was after the event and while they have raised the issue it is not for this Committee to determine the science.

77. The partners continued with the practice of adding supplements to the feed on a regular basis and also within the one clear day rule which led to the second breach of the Rules.

78. Mr C Wilson stated that there was some degree of negligence on their part in regard to the high Cobalt return, along with a lack of understanding of the Rule changes and knowledge/access to computers.

79. The RIU sought a fine of $10,000 as a starting point.

80. Both Mr Ross Wilson and Chris Wilson admitted the breach of rules at the earliest opportunity. Mr Wilson has 40 years’ experience in the harness racing industry and this is his first breach of the prohibited substance rule and the one-day clear rule. Mr C Wilson is new to training and has held a trainer’s licence for just over a year.

81. The level of 168mg/L is at the low end of the scale.

82. We gain some guidance from previous cases in a similar range:

RIU v S Hale (September 2018 Harness) – 1 horse with excessive Cobalt (120mcg) – salt mix supplement likely culprit. First offence – fined $4,000

RIU v G Dixon (April 2018 Harness) – 1 horse with excessive Cobalt (293mcg) – several supplements at stable. First offence – fined $6,500

RIU v G Anderson (March 2020 Harness – 1 horse excess Cobalt (128mcg) – salt lick likely culprit. First offence – fined $5,000

DECISION

83. A significant difference with this case is that the partners have admitted two separate breaches of the Rules. The first r1004A (2) is presenting a horse with a prohibited substance, namely Cobalt, and the second r1004A (3) is providing a substance containing Cobalt prior to the day of racing. Both breaches are punishable pursuant to r1004D (1).

84. For the purposes of imposing a penalty the Committee will deal with each breach separately.

Breach of r1004A (2)

85. The RIU submitted a starting point of $10,000 and viewed the breach of the Rules as “moderate”. Mr R & C Wilson admitted the breach at the outset and have fully co-operated throughout the investigation. Mr R Wilson has 40 years in the Harness Racing Industry and his record is exemplary while Mr C Wilson is new to the partnership having joined just over 12 months ago.

86. Both Mr R & C Wilson are unable to explain the level of Cobalt returned by IDEAL ROBYN. The level is slightly higher than Hale and Anderson, but lower than Dixon.

87. In Hale both the Judicial Committee and the Appeals Tribunal adopted a starting point of $6,000 while the Committee in Anderson adopted a starting point of $7,000. The aggravating factor in Anderson was that it was Anderson’s second breach of the prohibited substance Rule. The first was in a training partnership and did not involve Cobalt, which was taken into consideration by the Committee.

88. Taking into account the admission of the breach and Mr R Wilson’s excellent record within the industry the committee views this breach to be low range and adopts a starting point of $6,000.

89. An aggravating feature is that on two occasions within the prior 12 months the RIU Racecourse Investigator had visited their stables raising his concerns of elevated Cobalt levels following the testing of their stable runners Robyn’s Playboy - 97.2mgL and Von Art -75.9mgL. The second visit by the Racecourse Investigator re ROBYN’S PLAYBOY was only a week before IDEAL ROBYN’S high return.

90. At the hearing Mr C Wilson admitted there had been some “small negligence” on their part, and to this the Committee agrees.

91. Taking into account these aggravating factors we fine the co-trainers Ross & Chris Wilson $7,000.

Breach of r 1004C (3)

92. Mr R Wilson had maintained a feeding regime over many years. He admitted he was not up with computers and wasn’t aware of this particular rule or that he had breached the rule. However, when spoken to by the Racecourse Investigator re the high Cobalt return for IDEAL ROBYN he admitted giving his horse a supplement the day prior to racing – 30ml Ironcyclen.

93. The breach was brought about through the admission of Mr R Wilson at the outset. He was following a practice which he maintained with all his horses over many years.

94. In setting a penalty the Committee cannot draw on any similar cases for guidance.

95. The Committee views this breach at the lower end of the scale and Mr R and Mr C Wilson are fined $500.

96. The RIU do not seek costs and as the hearing was held on a raceday there is no order of costs in favour of the JCA.

P Knowles

CHAIR

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