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Non Raceday Inquiry - HRNZ v LS Edwards - 30 September 2010 - Decision

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Rules:

1001(1)(q) (Penalty Rules) 1001(2), 1001(3),

1004(6) (Penalty Rules), 1004(7) & 1004(8)

 

 

BEFORE THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

 

 

HELD AT CAMBRIDGE

 

IN THE MATTER        of the New Zealand Rules of Harness Racing

 

BETWEEN   

Mr THOMAS RODNEY CARMICHAEL (on behalf of HARNESS RACING  NEW ZEALAND)

 

Informant

 

AND 

Ms LEANNE SHIRLEY EDWARDS   Public Trainer

 

Defendant

 

Information No’s:  68689 and 68691

 

Venue:  Cambridge Raceway, Cambridge

 

Judicial Committee:  BJ Scott (Chairman), LN McCutcheon (Committee Member)

 

Appearing:  Mr TR Carmichael for the Informant,

                 Ms LS Edwards in person,

                 Mr M Branch as Counsel for Ms Edwards

                 Ms Robyn Parker (Observer representing Mr Tony

                 Ryan)

Plea:  (i)       Charge under Rule 1001(1)(q) – not admitted

          (ii)    Charge under Rule 1004(6) - admitted

 

Date of Hearing:  30th September 2010

 

Date of Decision:  30th September 2010

 

 

 

DECISION OF JUDICIAL COMMITTEE

 

 

1.1     Ms Robyn Parker advised this Committee that she is a Barrister representing Mr Tony Ryan who is acting for Mr JT Peary.   Ms Parker wished to be present as an observer.   Mr Carmichael and Mr Branch both consented to Ms Parker being allowed to remain as an observer.   The Committee accordingly allowed Ms Parker to remain during the Hearing.

 

1.2     Ms Edwards was charged under Rule 1001(1)(q) of the Rules of Harness Racing in that she did cause or did permit John Terrick Peary to administer by nasal gastric tube a prohibited substance, namely Sodium Bicarbonate, to the horse Machabella which was to be taken to Alexandra Park for the purposes of engaging in a race, namely the Ken Dalzell Mobile Pace at a Race Meeting conducted by the Thames Harness Racing Club on the 2nd of July 2010.   The penalty or penalties that could be imposed pursuant to that Rule are those set out in Rules 1001(2) and 1001(3).

 

1.3     Rule 1001(1)(q) provides:

 

          “Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country administers, causes or permits to be administered or who attempts to administer or to cause to be administered to any horse which is taken or is to be taken to a racecourse for the purpose of engaging in a race any prohibited substance.”

 

1.4     Ms Edwards did not admit the charge pursuant to Rule 1001(1)(q).

 

1.5     Mr Carmichael advised this Committee that he was not offering any evidence in respect to that charge and accordingly it was dismissed by the Committee.

 

1.6     Ms Edwards was also charged with committing a breach of Rule 1004(6) in that during a day of racing she did administer or permit to be administered by nasal gastric tube a substance containing sodium bicarbonate to the horse Machabella which was to start in Race 5 at a Race Meeting conducted by the Thames Harness Racing Club at Alexandra Park on the 2nd of July 2010.   The charge also stated that Ms Edwards was liable to the penalty or penalties that may be imposed pursuant to Rules 1004(7) and 1004(8).

 

1.7     Mr Carmichael asked for an amendment to the Information in that the Penalty Rule should be 1003(1) and not Rules 1004(7) and 1004(8).

 

          Mr Branch did not object to that amendment and accordingly the Committee ruled that the Information be so amended.

 

          Rule 1003(1) provides:

 

          “A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 1001 or 1004 hereof) shall be liable to the following penalties:

 

(a)          a fine not exceeding $5,000;  and/or

 

(b)         suspension from holding or obtaining a licence for a period not exceeding 12 months;  and/or

 

(c)      disqualification for a period not exceeding 12 months.

 

In addition to or in substitution of any penalty imposed pursuant to sub-rule (1) hereof, any horse connected with the breach of the Rule may be scratched or disqualified from any race and/or disqualified for a period not exceeding 12 months.”

 

1.8     The Rules were read to Ms Edwards and she acknowledged that she understood them.

 

1.9     Ms Edwards admitted the charge pursuant to Rule 1004(6).

 

 

Submissions by Mr Carmichael

 

2.1     Mr Carmichael presented written authority from the General Manager of HRNZ to proceed with the charges against Ms Edwards.

 

2.2     Mr Carmichael presented his Summary of Facts the main points of which are as follows:

 

(a)      Ms Leanne Shirley Edwards is a Public Trainer who was first licensed as a Public Trainer on her own account in 1985.   Her License Notification was produced as an exhibit.

 

(b)     A prohibited substance is defined in Rule 1005(1) as follows:

 

“(aa)   any substance capable of affecting the speed, stamina, courage or conduct of a horse by its actions upon the central or peripheral nervous system, or the cardio-vascular, respiratory, alimentary-digestive, musculoskeletal or urogenital systems;

 

(bb)    any substance set out in the Prohibited Substance Regulations;

 

(cc)    metabolites, artefacts and isomers of the prohibited substances prescribed by paragraphs (a) and/or (b) hereof).

 

          A copy of the Prohibited Substance Regulations was produced to the Committee.

 

2.3     The offence that has been admitted relates to the race day administration by way of a nasal gastric tube of a mixture that contained sodium bicarbonate to the horse Machabella.

 

2.4     The basic facts were not in dispute and were:

 

(a)      TCO2 testing is permitted by the Rules, in particular Rules 212, 213, and 214.   The protocols for the collection of such samples are contained in the Regulations.   On 1st April 2001 the Executive set a maximum permissible TCO2 level of 36.2 mmol/L (this level includes a 1.2 mml/L analytical error factor).

 

(b)     On 2nd July 2010 the horse Machabella was correctly entered for and started in Race 5, (the Ken Dalzell Mobile Pace) for non winning pacers at a race meeting conducted by the Thames Harness Racing Club.

 

(c)      Machabella was one of 16 horses selected to be sampled for TCO2 levels on 2nd July 2010.   Ms Edwards was present when the sample was obtained at 7l13pm.   She signed the relevant form accordingly.   The signed form and the bicarbonate result schedule for the race were presented to this Committee.

 

(d)      Machabella won the race, earning $3,250 gross stake money.   The horse was 3/3 in the betting and had average form leading into the race.   The official result was presented to this Committee.

 

(e)      All samples from the meeting were correctly packaged in accordance with the regulations and delivered to the Racing Laboratory at Avondale at midday on 6th July 2010 “with all seals intact”.

 

(f)      On 7th July 2010 written advice was received from the Racing Laboratory that the sample from Machabella had recorded a TCO2 level of 38.0+ mmol/L.   This exceeded the maximum permissible level by 1.5 mmol/L and was therefore, prima facie, a breach of the Rules.

 

          A copy of the Certificate of Analysis was presented to this Committee.

 

(g)      Records showed that prior to 2nd July 2010 Machabella had been tested only once, on 27th August 2009 when a level of 30.2 mmol/L was recorded.   Since the introduction of TCO2 testing in 2001 Ms Edwards has had 60 horses sampled with an average result of 30.9 mmol/L.   A list of all horses trained by Ms Edwards was presented to this Committee.

 

(h)      Ms Edwards was interviewed at her home on 8th July 2010 and her written statements was produced to this Committee.   In her statement Ms Edwards said (among other things) that the horse was tubed at her stables but that the mixture was made up by another Trainer who shares the barn with her.   She said that she didn’t even know what to put in it or how to mix the stuff and that she doesn’t know how to tube a horse.

 

          She said that the horse had been working well and drew well and she thought it would win.   The other Trainer asked her if she wanted the horse tubed and she said yes.   She said that she is responsible for this because she held the horse while the other Trainer tubed it.   Ms Edwards went on to say that the other Trainer had the tubing equipment but that he had asked her to “get the stuff”.   She said that she brought some baking soda from a dairy up the road but that she doesn’t know what was mixed in with it before it was given to the horse.

 

          Ms Edwards also said that as soon as the blood was taken on race night she knew that she was in trouble and she wanted to speak to Mr Carmichael because she wanted to scratch the horse but Mr Carmichael was busy.

 

(i)       Mr Carmichael also presented to this Committee a number of previous drug offence decisions being HRNZ v S, HRNZ v M, HRNZ v C  and HRNZ v P.

 

 

Submissions by Mr Branch

 

3.1.    Mr Branch for his Client told this Committee that although the facts were accepted this was an unusual situation because of Ms Edward’s admission.   He said that at the first opportunity Ms Edwards had completely admitted her part in this matter and had cooperated fully with Mr Carmichael.

 

          Mr Branch said that if Ms Edwards had not have admitted liability at the first instance then that would have put HRNZ to the trouble of a more extensive investigation and then to the trouble of having to prove its case before the Committee.   Mr Branch suggested that if Ms Edwards had have denied any liability then in terms of other TCO2 cases that she would merely have received a fine but because of her admission she now faces a more serious penalty and Mr Branch submitted to the Committee that this admission should be taken into account.

 

          In his evidence, Mr Carmichael had produced a number of previous cases and Mr Branch referred to the case of HRNZ v P.   He said that the circumstances surrounding Ms Edward’s case were virtually identical to that case in that there was an early admission of guilt and cooperation.   Mr Branch pointed to the fact that admission on that occasion meant that HRNZ was not put to the trouble of having to undertake an extensive investigation and to prove its case.   He said that the Committee in that case decided that any starting point penalty should be half the recommended penalty and then any matters for which the Defendant should be given credit should then be taken into account.   Mr Branch drew a strong comparison between that case and the present case involving Ms Edwards.

 

3.2.    Mr Branch also referred to the case of HRNZ v S but advised this Committee that that related to a more serious charge.

 

          Mr Branch also referred to HRNZ v M wherein the Informant advised the Committee that HRNZ sought different penalties for different levels of TCO2.   He said that the upper TCO2 level referred to in that case did not apply in this case and that Ms Edwards fell in the next category down.

 

3.3.    Mr Branch also submitted to this Committee that Ms Edwards was under outside influence from another Trainer.   He acknowledged that Ms Edwards was the Trainer but that the opportunity was presented to her by an outside Trainer.  

 

          He submitted further that Ms Edwards was naïve and wrongly took the opportunity that was presented to her.

 

3.4.    Mr Branch referred to Ms Edward’s early admission of guilt, her level of remorse and the influence on her of a third party.   He submitted that this was a unique situation based on that set of facts and asked the Committee to take this into account.

 

3.5     Mr Branch also submitted to the Committee a letter from Ms Edwards as to her financial position.

 

 

Penalty Submissions by Mr Carmichael

 

4.1     Mr Carmichael advised this Committee that since the introduction of the new TCO2 testing regime on 1st April 2001 more than 21,000 standardbred horses have been tested in New Zealand.   Thee have been 16 previous prosecutions resulting from the presentation of horses to race with elevated TCO2 levels.   This is however the first case where a trainer has actually admitted being a party to the race day administration of sodium bicarbonate by nasal gastric tube.

 

4.2     Mr Carmichael further advised that a conviction for an admitted breach of a Rule 1004(6) should result in a period of disqualification, particularly when there has been, as in this case, a deliberate administration of a mixture that contained a prohibited substance.

 

4.3     Mr Carmichael submitted that a period of 9 months disqualification is an appropriate mid-point when this Committee considers the penalty appropriate in this case.   He said it is difficult to imagine a more serious breach of the Rule.

 

4.4     Mr Carmichael also submitted that Ms Edwards made a full and frank admission when first interviewed and, in the opinion of the Informant, has shown genuine contrition for her actions.   She has further admitted the charge before this committee at the first opportunity, and on a race day, thus avoiding unnecessary costs to the Industry.

 

4.5     Rule 1003(1) provides a discretion for this Committee in relation to the disqualification of a horse connected with a breach of Rule 1004(6).   In all of the circumstances it is the Informant’s submission that disqualification of Machabella from Race 5 at Thames on 2nd July 2010 would be entirely appropriate.

 

4.6     It is therefore submitted by Mr Carmichael that Machabella should be disqualified and the official placing’s should be amended accordingly.

 

4.7     Mr Carmichael also submitted that the Informant makes no application for costs.

 

 

Penalty Submissions by Mr Branch

 

5.1     Mr Branch referred to his earlier submissions and in particular his submissions relating to the case of HRNZ v P.   He noted that Mr Carmichael had asked for a period of disqualification of nine months which is also the starting point in the JCA Guidelines.   He submitted that as a result of HRNZ v P that the Committee should be looking at a starting point of half that proposed by Mr Carmichael.

 

5.2     Mr Branch asked that the matters submitted by him be taken into account and that the Committee should also take into account that Ms Edwards was a small time battling Trainer who took a risk.   He suggested that she was frustrated at the fact that the actions of other Trainers that she raced against meant that she was not racing on a level playing field and she did take a risk and she is now suffering the consequences of that.

 

5.3     Mr Branch also submitted that Ms Edwards did not have any ability to pay a fine and he asked that any period of disqualification be deferred for 14 days to enable Ms Edwards to get her affairs in order.

 

 

Decision and Reasons

 

6.1     Ms Leanne Edwards faced two charges today, the first one under Rule 1001(1)(q) a charge of causing or permitting John Terrick Peary to administer by nasal gastric tube a prohibited substance namely sodium bicarbonate to the horse Machabella on the 2nd of July 2010.   Ms Edwards did not admit that charge and Mr Carmichael as Informant offered no evidence in respect to that charge and accordingly it is dismissed.

 

6.2     The second charge is pursuant to Rule 1004(6) and that charge is a charge that Ms Edwards committed a breach of that Rule during a day of racing and that she did administer or permit to be administered by nasal gastric tube a substance containing sodium bicarbonate to the horse Machabella which was to start in the fifth race at the Thames Harness Racing Club’s Meeting at Alexandra Park that day the 2nd of July 2010.

 

6.3     It goes without saying that charges as such of these go to the very heart of the integrity of Harness Racing and integrity is a matter that is vital for the Harness Racing Industry particularly in the competitive times that the Industry faces today and it is important that the confidence of the public is retained.

 

6.4     We have had the facts of this case presented to us by Mr Carmichael and those facts are not in dispute.

 

6.5     In dealing with this matter we look at the following:

 

(a)      The aggravating features are firstly that this was tubing of the racehorse on race day and it is well known that not only is that not allowed by the Rules but it is also well known that it is a form of cheating.

 

(b)     Another aggravating feature is that Ms Edwards tells us that she has come under the influence of a third person although we do have some trouble with that because she has admitted that she bought the sodium bicarbonate.   Clearly the only purpose for buying it can be that she was going to use it on one of her horses.

 

(c)      Ms Edwards tells us that the purpose of tubing the horse was to give it an advantage on race day.   She also did not know or enquire as to the contents of the mixture other than the fact that she knew that the sodium bicarbonate was in it.

 

(d)      A further aggravating factor is that this was a particularly high reading at plus or minus 38.0 mmol/Ls per litre and Ms Edwards knew that once the blood test was taken from her horse on race day that she was in some trouble.  

 

(e)      Ms Edwards clearly had a guilty conscience because of course she participated in the administration of the mixture to this particular horse Machabella.

 

(f)      We also take Mr Carmichael’s point that it is difficult to imagine a more serious breach of the Rule.

 

6.6     On the credit side Ms Edwards has admitted the breach at the first possible opportunity.   She has not only admitted the breach but as explained by Mr Branch by admitting her full involvement in it she has put herself in a worse position than she might otherwise have been in if she had not admitted it.

 

6.7     We are told that she is contrite and remorseful and Mr Carmichael has readily told us that, we are also told that she has been very cooperative.   We look at her record and we see that her horses have had 60 bicarbonate tests and this is the only positive one and generally speaking her record is fine.

 

6.8     There are a number of cases that have been presented to us by Mr Carmichael and two of those cases in particular relating to HRNZ v S and HRNZ v P were particularly drawn to our attention.   Mr Branch has told us that the circumstances surrounding the present case with Ms Edwards are identical to those in the HRNZ v P case and therefore based on that we should be looking at a starting point of half of what it would normally be.

 

6.9     We also make the point that the HRNZ v S case whilst it involved a more serious charge also involved a Trainer who readily admitted the breach, was open and frank in admitting his involvement in what he had done and was cooperative with the Stewards on that occasion.

 

6.10    However both of those cases were in 2005 and we note that the JCA Guidelines came into being in August 2006.   The Guidelines were widely circulated amongst all members of the industry for comment before they were finally compiled.   The Guideline starting point for a breach of Rule 1004(6) is $5,000.00 fine and disqualification for nine months.   It is against that background that we must assess what penalty is to be imposed.

 

6.11   The other matter that we need to address is the possible disqualification of Machabella from Race 5 of the Thames Harness Racing Club’s Meeting.   We have discretion under Rule 1003(1) and we think it is entirely appropriate that we should order that Machabella be disqualified from first place in that race which is the Ken Dalzell Mobile Pace and we so order.   The amended placings will now be:

 

          Matty Brogden   1st

          Victoria Chappell   2nd

          Dashing Darsha   3rd

          Ushuaia   4th

          Shaccha Mcguire   5th

          Mattusie   6th

 

6.12   In respect to Ms Edwards we received a submission from Mr Carmichael that the starting point disqualification that he is seeking is for a period of nine months.   He acknowledges some mitigating factors.  

 

6.13   Mr Branch has asked us to take into account the fact that Ms Edwards admitted the breach at the first possible opportunity and that she was contrite and to some extent under the influence of a third person.

 

6.14   We have some difficulty with the third matter bearing in mind that Ms Edwards went out and bought the sodium bicarbonate and we think that that does her no good at all.

 

6.15   Taking all matters into account we have decided to impose a period of disqualification of eight months on Ms Edwards and so order.   The disqualification shall commence from Friday the 14th of October 2010 to enable Ms Edwards to make arrangements for her horses.   The disqualification period will end on the 14th day of June 2011.

 

6.16   Mr Carmichael has not asked for costs and accordingly an Order in favour of HRNZ is not made but we do order that Ms Edwards pays costs of $250.00 to the Judicial Control Authority.  

 

 

 

 

 

 

BJ Scott                             LN McCutcheon

Chairman                         Committee Member

 

 

 

 

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