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Review/Non Raceday Inquiry RIU and S & C Blackburn - Reserved Decision dated 16 March 2018 - Chair, Prof G Hall

Created on 19 March 2018

BEFORE A JUDICIAL COMMITTEE

OF THE JCA AT PALMERSTON NORTH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association (Incorporated)

BETWEEN

RACING INTEGRITY UNIT (RIU)

Informant

AND SUE BLACKBURN and

COURT BLACKBURN,

Licensed Trainers

Respondents

BETWEEN

SUE BLACKBURN and

COURT BLACKBURN

Licensed Trainers

Applicants

AND RACING INTEGRITY UNIT (RIU)

Respondent

Information: A4463

Judicial Committee: Prof G Hall, Chairman

Mr P Williams, Committee Member

Appearing: Mr G Whiterod, Chief Stipendiary Steward (Greyhounds)

Ms S Blackburn in person

RESERVED DECISION OF JUDICIAL COMMITTEE

[1] At the meeting of the Wanganui Greyhound Racing Club on 5 January last Ms S Blackburn, together with Mr C Blackburn, were alleged to have failed to present LOCO AMIGO from the pre-race parade in Race 1 after the dog had passed all pre-race checks by the on-course veterinarian. Ms Blackburn and Mr Blackburn have been charged with a breach of r 40.3 of the Greyhound Racing New Zealand Rules of Racing.

[2] Rule 40.3 states: “If a Greyhound is withdrawn without valid reason after the Box Draw, or after qualifying for a Semi Final or Final of a Totalisator Race, the Owner or Trainer of the Greyhound shall be guilty of an Offence.”

[3] The dog LOCO AMIGO was stood down for 28 days under r 40.7.

[4] Rule 40.7 states: “A Greyhound which has been included in the Box Draw for a Meeting or after qualifying for a Semi Final or Final at a Totalisator Race and is not presented to Race, shall be Suspended for 28 days unless permission has been granted by the Stewards for the Greyhound to be withdrawn, or the reason for the non-attendance is submitted in writing to the Stewards of the day who may then reconsider the Penalty. An Owner or Trainer of a Greyhound may seek a review, by a Judicial Committee, of any decision under this Rule in accordance with r 66.20.”

[5] Ms S Blackburn and Mr C Blackburn seek such a review.

[6] Both the charge and the application for review were heard at the Manawatu Raceway at Palmerston North on 27 February last.

[7] After hearing from the parties, we determined that Mr Whiterod would present the RIU’s case and Ms Blackburn would respond. Ms Blackburn stated that she appeared on behalf of the training partnership.

[8] Mr Whiterod commenced his case by producing permission from Mr M Godber dated 8 January 2017 (sic) to bring the charge. As the charge was laid on raceday we were of the view that this permission was not necessary but the authority was tabled before us.

[9] Mr Whiterod stated that LOCO AMIGO was entered in race 1 on 5 January 2018 and had drawn box 5. The dog had been kennelled as usual. She had been identified and weighed. During the kennelling process, Ms Blackburn expressed concern to Mr Jantzen, the Official Veterinarian, as to the dog racing on the day. Mr Jantzen inspected LOCO AMIGO and passed her fit to race.

[10] Mr Whiterod said that Ms Blackburn had said to a Stipendiary Steward, Mr Bateup, as the dogs were being removed from the kennels for race 1, that she was not intending to race LOCO AMIGO because of the dog’s vision problems.

[11] Mr Whiterod said Mr Jantzen was again consulted, although Ms Blackburn disagreed that this was the case. Mr Bateup then advised Mr Austin, the Chairman of Stewards on the day, that Ms Blackburn did not intend to present the dog and, after discussion between Mr Austin and Mr Bateup, Mr Austin decided to late scratch the dog.

[12] Mr Whiterod was not certain as to the timing of the scratching, as no record was kept of this, but he stated it was before the dogs went out on to the track for the race. He thought it was up to 10 minutes before the start of the race. The dog had never been rugged up by Ms Blackburn.

[13] In response to questioning from the Committee, Mr Whiterod agreed that until that time people would have been investing on the dog. He had no idea how favoured the dog had been when she was scratched as that information was not available to the Stewards. However, when she raced on 27 December 2017 she was paying $14 to win and had finished fifth.

[14] Mr Austin determined after the race that the dog was suspended for 28 days, pursuant to r 40.7 as there was no valid reason under r 40.3 to withdraw the dog. He communicated this decision to Ms Blackburn.

[15] LOCO AMIGO had had 22 lifetime starts for 1 win, 2 2nds and 2 3rds. The dog had been scratched on a previous occasion as a result of a vision problem. This was 9 August 2017 when the Official Veterinarian on the day, Ms J Kelly, was concerned that the dog had wide dilated pupils. This late scratching was confirmed by exhibit A. LOCO AMIGO was stood down for 5 days.

[16] Mr Whiterod said since 9 August the dog had had 9 starts prior to the race in question and had not started since 5 January, although she had been eligible to race since early February. Ms Blackburn helpfully explained that LOCO AMIGO was now retired.

[17] Mr Whiterod said he was not aware of any concerns in the period 9 August to 5 January concerning the health and safety of LOCO AMIGO or other dogs due to her racing with her eyesight problem.

[18] Mr Whiterod produced a letter (exhibit B) from Mr Irving, a Palmerston North based animal eye specialist, which he had received from Mr Jantzen. Mr Irving expressed the view that worms migrating to the eye could be a possible cause of the eyesight problem, but further investigation would be needed to establish this conclusively.

[19] Mr Whiterod said Ms Blackburn had declined the opportunity to have LOCO AMIGO re-examined as she had stated to Mr Jantzen that she had no faith in Mr Irving’s ability to assess the eye problem.

[20] Mr M Jantzen, the Official Veterinarian on 5 January, gave evidence. He said he had been qualified since 1970 and was the Chief Veterinarian Adviser to GRNZ.

[21] Mr Jantzen recalled a conversation with Ms Blackburn when LOCO AMIGO was being examined on the table (we assume pursuant to r 44.19) concerning the dog’s eyes. He said she was concerned that LOCO AMIGO’s pupils were dilated. He was sure the dog was fit to race and said dilated pupils could be due to an eye problem or to adrenaline at the time of examination. He thought he had made it clear to Ms Blackburn that he wanted to look at the dog again before she raced, although he was not sure as to this. He was satisfied the dog had blinked when he ran his hand in front of her eyes. He was happy for her to be kennelled with the proviso he would prefer to re-examine LOCO AMIGO before she raced. Again, he said he thought he had conveyed this but the dog was not presented to him for re-examination.

[22] Mr Jantzen said he had not had a discussion with Ms Blackburn about the dog not being presented; the dog was simply not presented.

[23] Mr Jantzen recalled a conversation he had had with Mr Irving concerning Ms Blackburn and Mr Goldsack having dogs with eye problems. Mr Irving had told him it could be that worm larvae had ended up in the eyes but this was difficult to tell, however. As he recalled, they were to take their dogs back to Mr Irving for re-examination. He did not believe they had done so.

[24] Ms Blackburn asked Mr Jantzen whether he could recall her saying to him she was concerned about the dog racing because of the weather and the dog’s eye problem. He recalled only Ms Blackburn saying the dog’s eyes were dilated and that she did not want the dog to start because of the eyesight issue. LOCO AMIGO had reacted to his hand and that was why she was fit to race but he agreed he was concerned as to safety and that was why he wanted to re-examine the dog prior to racing.

[25] Mr Jantzen said when a dog is very excited adrenaline can dilate the pupils. This was not particularly common or normal, perhaps he saw a handful a meeting. He had never required that a dog not start because of this but said if he had concerns, he would notify the raceday Chairman of Stewards, and the dog would be late scratched.

[26] Mr Jantzen explained in bright sunlight a dog’s pupils would constrict and on dull days they would dilate to allow light in. He would take into account a dog’s reaction to bright light. He said his usual practice was just to look at the pupils of a dog’s eyes. His running his hand past LOCO AMIGO’s eyes was due to Ms Blackburn’s concerns.

[27] Mr Whiterod said to Mr Jantzen there was a lot of rain on the day in question and it was dull. He asked him whether it was safe for racing. Mr Jantzen replied that even on an overcast day there is enough light for a dog to safely compete.

[28] Ms J Kelly than gave evidence. She said she had been the Official Veterinarian on 9 August 2017 at Wanganui and she had declared LOCO AMIGO a late scratching. She said Ms Blackburn had asked her to pay particular attention to the eyes of the dog. She observed they were widely dilated. This was more than she would expect to see. She was satisfied the dog would have impaired vision to some extent and was concerned as to the fairness issue, if the dog were to race. She ordered a 5-day stand down to give Ms Blackburn time to have the dog treated or for the sight to come right of its own accord.

[29] Ms Kelly said she had been a veterinarian for 23 years and had been inspecting greyhounds for two. She had had previous concerns with animals with dilated pupils but never another dog on raceday. LOCO AMIGO was the first and only time.

[30] Ms Kelly said she did not remember the weather conditions on that day but if it were a very bright day she would be concerned if a dog’s eyes were dilated. She said a dog with such vision would see less well, the sunnier the weather.

[31] Mr Austin gave evidence that he was the Chairman of Stewards on 5 January. He said Ms Blackburn approached him in the parade ring prior to kennelling her dog. She said she was concerned about the light on the day and that LOCO AMIGO should not start. He told her to kennel the dog and he would get Mr Jantzen to check LOCO AMIGO over.

[32] Mr Austin said the dog went through the kennelling process. Mr Jantzen checked the dog and had no concerns. Mr Jantzen said to him that the dog’s pupils were dilated but the dog had blinked when he passed his hand in front of her eyes. He said there was no physical impediment to LOCO AMIGO being kennelled and racing. No physical abnormality had been detected.

[33] Ms Blackburn told him she wanted to re-assess whether it was okay for the dog to race. The next thing he knew about the matter was that Mr Bateup told him LOCO AMIGO would not be presented, and he then declared the dog a late scratching. He thought this was 6 or 7 minutes before race start time but he had not noted the time. He believed the TAB would have an official record. It did not occur to him at that time to request that the dog be re-examined by the Official Veterinarian.

[34] We observe r 47.1 provides:

A Greyhound shall be retrieved from its allotted kennel by the Handler under the supervision of a person authorised by the Stewards at the time as displayed in the kennels, so as to allow [inter alia]:

(b) The Greyhound to be further examined by an officiating Veterinarian or a person authorised by the Stewards in order to determine that the Greyhound is fit to compete and, in the case of a bitch, is not In Season if required….

[35] Mr Austin said Mr Jantzen had never said to him that he wanted to re-examine the dog. If Mr Jantzen had requested this he would have been able to do it. In response to questioning from the Committee, he said re-examining dogs was not unusual but he did not recall it being discussed on this occasion.

[36] Mr Austin said he had spoken to Mr Jantzen at length after the kennelling. Mr Jantzen was comfortable with the dog racing. Mr Jantzen referred to adrenaline and said in his professional opinion the dog was fit to start.

[37] Mr Austin told Mr Bateup to get Ms Blackburn to talk to him after the race so he could discuss the reason for the late scratching. As the Official Veterinarian had declared LOCO AMIGO fit to race he stood the dog down for 28 days and laid a charge against Ms Blackburn. Ms Blackburn told Mr Austin she would take the matter to the JCA and walked off.

[38] When questioned by Ms Blackburn, Mr Austin said the Official Veterinarian had said to her when she raised the eye issue with him that he was not an eye specialist and she should refer the dog to one. He denied telling Mr Jantzen to “make a call” when examining LOCO AMIGO on the table.

[39] Mr Jantzen had said there was no reason why LOCO AMIGO could not race. He may have said he did not know how much the dog could see. He could not recall. Ms Blackburn was “putting a hard ask on the Stewards and the vets”.

[40] Mr Austin agreed with Ms Blackburn that she had spoken to him before kennelling saying the dog had difficulty with sight on cloudy days, and that for welfare reasons the dog should not start.

[41] Mr Austin said the Stewards had to rely on the advice that they were given by the vets. He was aware of the earlier stand down but did not believe he had raised it with Mr Jantzen.

[42] Mr Bateup gave brief evidence. He said he was the Assistant Steward on 5 January. At the end of kennelling LOCO AMIGO was examined at length. He did not know the reason for this.

[43] The first he knew LOCO AMIGO was not likely to be presented was when Ms Blackburn said to him when he was walking through the café area some 20 minutes before the trainers were called, that she would most probably be scratching her dog.

[44] Mr Bateup said LOCO AMIGO was not rugged up and he spoke to Mr Jantzen and asked him if he was going to re-examine the dog. Mr Jantzen said that he did not need to, as he was happy with her condition. Ms Blackburn was not there at that time.

[45] Ms Blackburn had come to the kennel and got LOCO AMIGO out. She said to Mr Bateup that she would like to late scratch the dog. He said to her “fine”. There was no further discussion at that time. He advised Mr Austin 12 minutes before the start of the race that the dog was late scratched at the trainer’s request. He knew the reason, however, as Mr Austin had informed him earlier.

[46] When questioned by the Committee, Mr Bateup said it was not common for the Official Veterinarian to re-examine a dog of his or her own volition. It could happen though. Usually, if there was a problem with a dog, the Stewards would get the dog re-examined.

Ms Blackburn’s case

[47] Mr Goldsack was called to give evidence. He said he had had his first dog in 1976 but had been training since 2004-2005. He had gone to Mr Irving because he had a dog with eye issues and Mr Jantzen had recommended Mr Irving to him. Mr Irving concluded the dog did have issues with its eyes and had queried whether there was a worm problem at his property. He doubted this as none of the other 32 dogs he had at the time had any eye problems. However, Mr Irving had explained there might have been a rogue worm in the litter when the dog was in the womb and it had attacked the eyes. He did not go back to Mr Irving. The dog raced once and “just about took out the box”. He concluded the dog had only about 10% vision. It was now a pet and on a dull day it would bump into everything around the house; on a sunny day it was okay.

[48] Mr Goldsack also said he had had an issue with his dog BANSHEE BOY. He had trialled it at home and had then found out the dog was to race that same day, as it had come in off the ballot. The Club had not told him before this. The dog raced despite having had the workout at home earlier that day and had finished eighth. He was concerned about racing the dog but had not late scratched it, as he knew he would be penalised under the 28-day stand down rule.

[49] Mr Goldsack told Ms Blackburn about his dog with eyesight problems and his going to Mr Irving. Ms Blackburn said two of her dogs had similar issues. One of these dogs was LOCO AMIGO. He was concerned for her and her dog after his experience with his dog with eye problems.

[50] When asked why he had not continued to consult Mr Irving, Mr Goldsack said Mr Irving had wanted to inspect all the dogs on his property and he was concerned at the cost. He thought Mr Irving might have been right about the worm problem, but he had never struck it before.

[51] Ms Blackburn said there were 6 dogs in LOCO AMIGO’s litter. When breaking in one of the boys, she noticed his eyes were green. The dog was clumsy and ran into a fence on one occasion. She took the dog, which was a brother to LOCO AMIGO, to Mr Irving, who said the dog was going blind. She also took LOCO AMIGO. Mr Irving mentioned the possibility of scarring and also worms. As she had just wormed the dogs, she thought she would wait before doing anything further. She understood Mr Jantzen had taken samples from Mr Goldsack’s dogs and some had worms. The results were all different, however, and she understood the dog of his that was going blind did not have worms.

[52] Having regard to the cost and uncertainty, Ms Blackburn said she retired the dog who was going blind and persevered with LOCO AMIGO, as her eyes came and went depending on the weather. If it were dark, she would not race the dog. Ms Blackburn said she kept track of the weather conditions by phone and she did not nominate LOCO AMIGO if the weather was going to be cloudy.

[53] At 7.00 on the morning of the race in question she had texted another trainer, Ms S Gommans, and also Mr Goldsack, inquiring about the weather. It appeared to be clearing, so she did not scratch LOCO AMIGO.

[54] Ms Blackburn said if she had no valid reason to scratch the dog she would end up being charged. She would have needed a veterinarian certificate. She would have either had to bring the dog to the track to be vetted or go to her own veterinarian for a certificate.

[55] Ms Blackburn explained she had not presented LOCO AMIGO out of concern not only for that dog but the other dogs in the field as well. This was the first dog she had raced with this type of eye problem.

[56] Ms Blackburn alleged that the veterinarian inspection of LOCO AMIGO on the table was not thorough because of time constraints. Trainers knew their dogs better than the veterinarian anyway.

[57] Ms Blackburn said if there could have been a record made of LOCO AMIGO’s eye issue and an assessment able to be made of this condition before racing, this would be the best outcome. She was concerned about the inability of trainers to be able to scratch without penalty if they thought a dog could not handle conditions on the day. If there were concerns over withdrawals because of box draws, this could be solved by seeding the dogs and allocating boxes accordingly.

[58] Ms Blackburn said she did not consult anyone further on the day about the weather conditions because it had started to rain. The weather had got worse. She had not asked for a re-assessment of the dog as she believed nothing was going to change. The Official Veterinarian would have still said the dog was fit to race. She reiterated she knew her dogs better than anyone else.

Summing up

[59] Mr Whiterod said Ms Blackburn had arrived at the track with serious concerns as to whether LOCO AMIGO would be able to go on the track and race safely due to an eye condition. She expressed these concerns to Mr Austin and to Mr Jantzen, the Official Veterinarian on the day. Mr Jantzen had examined the dog’s eyesight in the presence of Mr Austin and Ms Blackburn. Mr Jantzen said in his evidence that he thought he would have another look later. However, he could not recall whether he said this to anybody. Neither Ms Blackburn nor Mr Austin recall being told. Mr Whiterod says a re-examination is standard procedure. However, when Mr Bateup questioned Mr Jantzen, he had said to Mr Bateup that he did not need to re-examine the dog.

[60] Ms Kelly said that on 9 August 2017 when she stood the dog down she was not familiar with the eye condition and had erred on the side of caution. She had recommended a late scratching and a 5-day stand down.

[61] Mr Whiterod emphasised the Stipendiary Stewards had to rely on the advice of the Official Veterinarian on raceday. The welfare of dogs was a principal concern of the Stewards. He referred to a previous practice of petrol vouchers being given for any dog that raced and that this had put pressure on the veterinarians, as dogs were being entered that were not up to race standard.

[62] Mr Whiterod emphasised that Ms Blackburn had not taken the opportunity to have LOCO AMIGO re-examined. She had just advised Mr Bateup that the dog would not race. There was no valid reason to withdraw the dog, so she was stood down for 28 days, as required by the Rules.

[63] Mr Whiterod emphasised this was Ms Blackburn’s second charge under this rule. The Sixth Schedule provided for a fine of $250 and, whilst it was within this Committee’s discretion as to whether to impose a fine of that amount, he believed it was appropriate in this case.

[64] Ms Blackburn reiterated she had withdrawn LOCO AMIGO because of her concerns as to the welfare of the dog. She had good intentions and the Committee should take this into account in determining penalty.

Decision

[65] We accept that Ms Blackburn was concerned about the welfare of LOCO AMIGO and the other dogs racing in the race in question that day. It is clear that the dog has an eye condition and this is why she was late scratched by the Official Veterinarian on 9 August last.

[66] Subsequent to the hearing Ms Blackburn referred the Committee to the Hansen Report to the NZRB on Welfare Issues Affecting Greyhound Racing in New Zealand, which was presented in October 2017. Obviously, as its title suggests, there are matters in that report that relate to the welfare and safety of greyhounds. The Report is not directly relevant to the matters before us, however we do note that r 108.1, which is referred to in the Report, (and is now r 109.1 in the Rules, updated as of 1 February 2018) provides that the registered owner is responsible for the welfare of every greyhound of which he or she is the registered owner. This puts into context the concern that Ms Blackburn had concerning the likelihood of injury to LOCO AMIGO if she had raced.

[67] We doubt that Mr Whiterod disputes that Ms Blackburn was well intentioned. Indeed, his summing up was prefaced with a concession to the effect that she was concerned about her dog running in the weather conditions that prevailed on the day.

[68] Mr Whiterod, in presenting the RIU case, said that Mr Jantzen was again consulted after Ms Blackburn indicated she was withdrawing her dog. It is not clear to us when this consultation took place. It is clear that Mr Jantzen did not re-examine the dog at this time. Mr Jantzen’s evidence is to this effect and Mr Austin said it did not occur to him at that time to request that the dog be re-examined by the Official Veterinarian. Mr Bateup made no reference to any further examination in his evidence. Ms Blackburn has denied that any re-examination occurred. We find on the evidence produced before us that LOCO AMIGO was not further examined after Ms Blackburn stated she was withdrawing the dog. It would appear the consultation with Mr Jantzen was after the race and related to the charge against the training partnership and the decision to order the suspension of LOCO AMIGO.

[69] Ms Blackburn’s actions can rightly be regarded as being precipitous. She should have taken the opportunity to request that LOCO AMIGO be re-examined. Rule 47.1(b) (see [34]) permits the re-examination of a greyhound. That said, we can understand her thoughts at the time that this might have been futile. She had previously raised her concerns with the Chairman of the Stewards and with the Official Veterinarian, and she had been told the dog was fit to race. To explain.

[70] We have conflicting evidence before us as to whether this re-examination would have produced the result Ms Blackburn was seeking. Mr Jantzen has said that he was proposing to reconsider the eye issue when the dog was rugged up and presented for racing. Neither Mr Austin nor Ms Blackburn can recall Mr Jantzen saying this during the examination of the dog on the table pursuant to r 44.19. Mr Bateup has said that Mr Jantzen had told him that LOCO AMIGO was fit to race and did not mention any re-examination to him.

[71] We note also we have had conflicting evidence from the two veterinarians as to whether the eyesight issue would be more of a concern on a bright or a dull day. Ms Blackburn has said LOCO AMIGO had difficulty in poor light and Mr Goldsack has said that that was his experience with his dog. We proceed simply on the basis that Ms Blackburn had genuine concern as to LOCO AMIGO racing in the dull weather conditions that prevailed on the day, which included persistent rain.

[72] We are not in any position on the limited evidence before us to comment on the thoroughness of examinations of dogs pursuant to r 44.19 nor on whether there needs to be better procedures put in place concerning re-examinations under r 47.1. Ms Blackburn’s concerns as to these matters, and to what she and apparently Mr Goldsack view as the unbending and punitive nature of rr 40.3 and 40.7, should be taken to Greyhound Racing New Zealand.

[73] The “standard” fine in the Sixth Schedule for a second breach of r 40.3 is one of $250. This amount thus factors in that this is Ms Blackburn’s second breach of this rule. The previous breach also related to concerns as to the welfare of one of her dogs. On that occasion her concern was as to the nature of the track on the day. We note this was in 2016 but there does not appear to be a reset period with respect to the penalty under this rule as there are in the other codes with respect to certain breaches of the rules.

[74] It is clear to us that Ms Blackburn is passionate about her dogs and their welfare is a prime concern for her, and so it should be for any owner and trainer. However, racing has to take place in accordance with the Rules and trainers must abide by them. Ms Blackburn was not denied the opportunity to raise her concerns as to the dog’s eyesight with the Official Veterinarian on the day and Mr Bateup has said that a substantial period of time was taken checking the dog’s eyes when she was on the examination table. As noted, the opportunity was not taken for a re-examination of LOCO AMIGO. We thus find that the dog was withdrawn without valid reason, as provided in r 40.3

[75] With respect to penalty, when regard is had to the circumstances surrounding the failure to present LOCO AMIGO, and the somewhat historical nature of the previous breach, we believe a fine of half of the sum of $250 is appropriate.

[76] Ms Blackburn is fined the sum of $125.

[77] Ms Blackburn has also reviewed the suspension of LOCO AMIGO under r 40.7. We find that the dog was withdrawn by Ms Blackburn without valid reason and that the 28-day suspension was in accordance with that rule.

[78] We did not receive any submissions as to costs. Leave is given to the parties to provide written submissions within 5 working days of receipt of this decision should they believe an order in their favour is appropriate. A further period of 5 working days is given in which to respond.

Dated at Dunedin this 16th day of March 2018.

Geoff Hall, Chairman

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