You are here: Home / Race Days / Dummy Location - 1 January 2001 / Non Raceday Inquiry - NZGRA v JT McInerney - 1 September 2010 - Decision

Non Raceday Inquiry - NZGRA v JT McInerney - 1 September 2010 - Decision

— filed under: ,


87.1 and 87.3

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

 

                                    IN THE MATTER       of the New Zealand

                                                                        Rules of Greyhound Racing

           

BETWEEN                  New Zealand Greyhound Racing Association

 

                                                                        Informant

 

                                     AND                           John Thomas McINERNEY     

 

Defendant

 

DATE OF HEARING: 1 September 2010

 

VENUE:                                  Addington Raceway, Christchurch.

 

PRESENT:                              Mr T. R. Carmichael (Racecourse Inspector) for New

                                                Zealand Greyhound Racing Association

                                            Mr P. L. Harper (Stipendiary Steward)

                                            Mr J. T. McInerney (Public Trainer)

                                            Mr S. P. Renault (HRNZ Stipendiary Steward)

 

JUDICIAL COMMITTEE:      J. M. Phelan (Chairman)

                                        S. C. Ching

 

DATE OF DECISION:

                                                                                                                                                                            

 

              JUDICIAL COMMITTEE’S DECISION ON PENALTY AND COSTS

                                                                                                                                                           

[1]        Racecourse Inspector Mr T. R. Carmichael has filed two Informations against Public Trainer Mr John Thomas McInerney charging him with two breaches of the Prohibited Substances Rule.

 

[2]        The first charge (Information 68688) reads as follows.

 

            “On the 11th day of June 2010, John Thomas McInerney was the trainer of the greyhound         Homebush Lenny which was presented for and raced in race ten at a race meeting conducted by   the Wanganui Greyhound Racing Club when the said greyhound was found to have had administered to it a drug, namely Codeine; being an offence under the provisions of Rules 87.1 and 87.3, and punishable pursuant to Rules 87.4 and 89.1.”

 

[3]        In relation to the second charge Mr Carmichael asked that the Information be amended to show the date of the offence as being 17 June 2010 and not the 16 June 2010.  The proposed amendment was agreed to by Mr McInerney and was made accordingly. The second charge (Information 68683) reads as follows.

 

            “On the 17th day of June 2010, John Thomas McInerney was the trainer and the person for the time being in charge of the greyhound Addicted To Luv which was presented for and raced in race seven at a race meeting conducted by the Southland Greyhound Racing Club when the said greyhound was found to have had administered to it a drug, namely 6a-hydroxystanozolol; being an offence under the provisions of Rules 87.1 and 87.3, and punishable pursuant to Rules 87.4 and 89.1.”

 

[4]        Rules 87.1 and 87.3 read as follows.

 

“87       PROHIBITED SUBSTANCES

 

87.1          The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance.

 

87.2          …..

 

87.3          Without limiting any of the provisions of these Rules, the Owner and Trainer or

Person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence, unless the Board determines to absolve the Owner and/or Trainer or person in charge of any Greyhound from the Offence.”

           

[5]        Mr McInerney agreed that he understood the charges and the Rules they were brought under. Mr McInerney also confirmed that these charges were admitted.

 

[6]        Mr Carmichael produced written permission to lodge these charges from the General Manager of Greyhound Racing New Zealand (GRNZ), in accordance with Rule 92.2(a).

           

[7]        Mr Carmichael provided a Summary of Facts which he read to this Committee.  In relation to the first charge, the facts are as follows.

 

[8]        On 11 June 2010 Mr McInerney was the official trainer of the registered greyhound “Homebush Lenny” which was correctly entered for and started in Race 10 at a race meeting conducted by the Wanganui Greyhound Racing Club at Hatrick Raceway. “Homebush Lenny” finished 1st in this race and earned gross stake money of $1086-00.  Mr McInerney was not present at the race meeting, and neither was his son Stephen McInerney, who runs the Marton kennels.  Mr W. J. Hodgson, who was an employee at that time, was in charge of “Homebush Lenny” when it was presented for racing.

 

[9]        After this race “Homebush Lenny” was selected to be swabbed.  Mr Hodgson was present at this time and he signed the relevant sections of the swab card confirming that correct procedures were followed.

 

[10]      The swab samples were forwarded to the Racing Laboratory at Auckland, and on 30 June 2010 the Racing Analyst confirmed in writing that the sample taken from “Homebush Lenny” had tested positive to codeine. Codeine is a derivative of morphine used as an anti-tussive and analgesic and it is widely available as an over-the-counter pain relief and cough suppressant.  Codeine on its own indicates the administration of a codeine rich product, and is prima facie a breach of the Rules of Greyhound Racing.

 

[11]      “Homebush Lenny” comes from the Marton kennels which is run by Stephen McInerney who was not present at the race meeting on 11 June 2010.  When interviewed he denied administering any substance to this greyhound that he knew contained codeine.

 

[12]      Two other staff members (Mr W. J. Hodgson and Mr D. Voyce) took at least 10 greyhounds to the races on 11 June 2010, and they were both interviewed and denied any responsibility.

 

[13]      Mr McInerney was also interviewed, and although he was not at Wanganui on 11 June 2010, he accepted that he was the official trainer and therefore responsible in terms of the Rule.  At this interview Mr McInerney said that he was not aware of any previous use of codeine, and nor was he aware of any therapeutic use for it.

 

[14]      When asked to comment on the Summary of Facts Mr McInerney said that a possible source of the codeine was bread that he fed to his greyhounds as part of their diet.  Mr McInerney explained that the particular bread used contained poppy seeds which contained morphine, and that this could have resulted in a positive test to codeine.

 

[15]      Mr Carmichael said that he disputed this possibility.  He said this matter had been referred to the Racing Analyst who advised that a positive test result for morphine shows up in a much different way to that of codeine.

 

[16]      In relation to this issue Mr Carmichael produced a copy of a research paper presented at the “Proceedings of the 11th International Conference of Racing Analysts and Veterinarians, Queensland, Australia”.   In this paper it was stated that –

 

            “Greyhound trainers in New Zealand have difficulty in obtaining a consistent and reliable supply of low protein racing kibble.  Consequently, most trainers feed bread/meat diets.  The bread used is normally stale bread of various kinds.  It seems feasible that, under such conditions, some trainers could inadvertently feed poppy seed bread.

 

            The feeding of this bread to a greyhound is unlikely to affect the performance of a dog.  However, it is negligent for the trainer not to omit this item from the diet, and as such           constitutes an offence.”

 

[17]      As an aside we urge that all greyhound trainers should make themselves well aware that they must avoid feeding poppy seed bread to their greyhounds.  In the present case, however, we accept that poppy seed bread was not the cause of this positive test to codeine.

 

[18]      The facts relating to second charge are as follows.  On 17 June 2010 Mr McInerney was the official trainer of the registered greyhound “Addicted To Luv” which was correctly entered for and started in Race 7 at a race meeting conducted by the Southland Greyhound Racing Club at Ascot Park. “Addicted To Luv” finished 1st in this race and earned gross stake money of $654-00.  Mr McInerney was not present at the race meeting but was at the Marton kennels.  Mr McInerney said that his son Jonathon and two employees took his greyhounds to this race meeting.

 

[19]      After this race “Addicted To Luv” was selected to be swabbed.  An employee, Mr T. P. Breen, was present at this time and he signed the relevant sections of the swab card confirming that correct procedures were followed.

 

[20]      The swab samples were forwarded to the Racing Laboratory at Auckland, and on 30 June 2010 the Racing Analyst confirmed in writing that the sample taken from “Addicted To Luv” had tested positive for 6a-hydroxystanozolol.  6a-hydroxystanozolol is a canine metabolite of the synthetic anabolic steroid drug Stanozolol which has legitimate therapeutic uses in animal medicine.  Principally Stanozolol has actions on the central nervous musculoskeletal systems of a greyhound.  It is available only as a prescription medicine from a Veterinarian.

 

[21]      In relation to Stanozolol it is also reported that “It effectively increases both muscular and skeletal weight and hastens the repair of tissues”.  Stanozolol is administered by intramuscular injection, and as it is water based it is readily and quickly absorbed.  Mr Carmichael said that 6a-hydroxystanozolol is clearly a Drug as defined in the Rules and its presence in a race day sample is prima facie a breach of Rule 87.

 

[22]      Mr McInerney was interviewed about this matter and he denied the intentional administration of any product that he knew contained Stanozolol.  A search of the kennel area and a locked medication cupboard failed to locate any product that contained Stanozolol.  Other staff at the Darfield kennels were also interviewed but they were unable to assist with the enquiry.

 

[23]      Mr Carmichael also said that use of anabolic steroids, such as 6a-hydroxystanozolol, had been widespread for use as a heat suppressant in female greyhounds.  The Industry had been advised by notices to all licensed persons that as from 1 February 2010 the Racing Laboratory would be testing for anabolic steroids.

 

[24]      In response to this Mr McInerney said that he had never used 6a-hydroxystanozolol for this purpose.  It is also relevant that “Addicted To Luv” is a dog.

 

[25]      During this enquiry Mr McInerney suggested that a possible source of the 6a-hydroxystanozolol could have been from horse meat from an animal which had previously been treated before being dropped at his property and slaughtered by him.  However Mr McInerney was unable to establish exactly where the horse came from.

 

[26]      Mr Carmichael investigated the possibility of a greyhound testing positive to 6a-hydroxystanozolol as a result of ingesting meat from an animal that had been injected with Stanozolol, but he was unable to find any data internationally to confirm this possibility.

 

[27]      Mr Carmichael referred this matter to Doctor J. Gannon (BVSc) who advised that –

 

            “There could be a positive for Stanozolol from horse meat if the portion of meat fed was the injection site for the drug and there was some residue in that piece of meat and it had not fully absorbed and metabolized at the time of slaughter.”

 

It was pointed out by Mr Carmichael that this was Dr Gannon’s opinion only, and that there was no scientific data to either confirm or refute this opinion.

 

[28]      Mr Carmichael also informed the hearing that there have been no previous cases in New Zealand involving either codeine or 6a-hydroxystanozolol.  There had, however, been a number of positive tests declared in the United Kingdom and Australia to 6a-hydroxystanozolol. A selection of some of the Australian decisions were referred to us for consideration, and these will be dealt with in our decision on penalty later in this decision.

 

[29]      In relation to penalty Mr Carmichael submitted that there was no evidence that Mr McInerney was responsible for administering prohibited substances to either of his greyhounds.  It was also accepted that Mr McInerney could not maintain “hands on” supervision on both of his kennels and the large number of dogs at those kennels, but that he was nonetheless responsible as the trainer of the greyhounds.

 

[30]      Mr Carmichael submitted that present cases would fall under the category of what used to be referred to as the “Drug Negligence Rule” in the Rules of Harness Racing and Thoroughbred Racing.

 

Although Rule 89.1 provided for a suspension or disqualification Mr Carmichael submitted that in these cases a fine would be more appropriate.

 

[31]      In relation to the first charge Mr Carmichael submitted that a starting point of a fine of    $1500-00 should be considered, and in relation to the second charge, a starting point of a fine of $2500-00 should be considered.

 

[32]      In relation to penalty Mr McInerney said he had admitted these two charges because of the strict liability rule, and confirmed that he had no idea as to how these prohibited substances had been administered to his greyhounds.  He also said he has a large breeding and training establishment and employed eight staff.

 

[33]      In relation to the codeine positive Mr McInerney said that such use on a greyhound would cause bleeding and ulcers, as dogs do not have lining on their stomach.  He said that all his people are well aware of this.  He also raised the possibility that someone may have given the greyhound codeine deliberately, as there had been threats from trainers in the North Island which Mr Carmichael was aware of.  This possibility is, of course, mere speculation.

 

[34]      Mr McInerney also explained that he uses cattle and horses as his source of meat for his greyhounds, and that he kills them on his property.  He uses mostly cattle and also a few horses, which are dropped off by local trainers.  He did not know who had dropped off the horse that could have been the source of the 6a-hydroxystanozolol, and enquiries with past suppliers to identify this horse had been unsuccessful.

 

[35]      Finally Mr McInerney submitted that Mr Carmichael’s recommendation of fines in these cases should be followed.

 

[36]      Rule 89.1 deals with the penalties for a breach of Rule 87, and this Rule provides as follows.

 

            “89.1  Any Person found guilty of an Offence under these Rules shall be liable to, in the sole       and absolute discretion of the Board or the Stewards:

                        a.         a fine not exceeding $10,000.00 for any one (1) Offence; and/or

                        b.         Suspension; and/or

                        c.         Disqualification; and/or

                        d.         Warning Off.”

 

[37]      There have been no previous reported cases in New Zealand of either prohibited substance being detected in greyhounds.  In relation to codeine we accept that it is very unlikely that a greyhound trainer would deliberately administer this to one of his greyhounds.  There was no evidence of either accidental or deliberate administration in this case.

 

[38]      Mr Carmichael provided a copy of the Greyhound Racing South Australia case of Gardiner where this trainer was disqualified five months following a positive test for codeine in one of her greyhounds.  Unfortunately this decision is very brief and gives no details of the circumstances.  It is therefore unhelpful.

 

[39]      There have a number of prosecutions in Australia in relation to positive tests for 6a-hydroxystanozolol.  Mr Carmichael produced copies of three of these decisions for our assistance, and these have been helpful.

 

[40]      In the Magnisalis case there was an appeal against the severity of a fine of $1500-00.  In this case the appellant had been treating his greyhound with 6a-hydroxystanozolol on the advice of his veterinary surgeon, who advised him that the drug should be out of the greyhound’s system within two or three weeks, but to “….give it a month to be sure”.  In fact the greyhound tested positive after a race seven weeks after the last treatment.  In this case the appeal was upheld and the fine reduced to $1000-00. 

 

[41]      In this decision the Tribunal pointed out that this was an appeal by the trainer against the amount of the fine imposed, and not a question of whether a disqualification or a fine was appropriate.

 

However, the Tribunal did say that the imposition of a fine, rather than a disqualification, by the stewards at the original hearing should not be regarded as a precedent, and that “Whether a drug was administered innocently or otherwise, and whether it was considered that the drug would not be present at the time of the testing is irrelevant”.

 

[42]      In Kelly the circumstances were similar in that the trainer had been treating her greyhound with 6a-hydroxystanozolol under the supervision of her veterinarian.  The greyhound won a race 10 weeks and 4 days after the last injection and returned a positive test.  The appellant was disqualified for seven months and appealed.  The appeal was upheld and the period of disqualification reduced from seven months to four months.

 

[43]      In Tsohalis there was an appeal against a disqualification of 6 months.  The appellant had pleaded not guilty at the original hearing and there was evidence that he had used 6a-hydroxystanozolol in the past, but had stopped using it when he became aware that it was prohibited substance.  The appeal was dismissed.

 

[44]      From these decisions we can see that positive tests to 6a-hydroxystanozolol result in disqualifications.  We do not regard the decision in the Magnisalis case as setting a precedent.  It is relevant, however, that in all the above cases the trainers had been using 6a-hydroxystanozolol to treat their greyhounds.  In the present case there is no evidence that Mr McInerney has ever used 6a-hydroxystanozolol and certainly none was found on his premises.  We accept Mr McInerney’s evidence that he has never used this drug.

 

[45]      In determining an appropriate penalty in this case we have taken into account the following matters.

 

[46]      The aggravating factor is that within a period of 6 days there were two instances of different prohibited substances being detected in Mr McInerney’s greyhounds.

 

[47]      To Mr McInerney’s credit we take into account his admission of the breaches, and also that there is no evidence that there was any deliberate administration.   We also take into account that Mr McInerney trains a large number of greyhounds (over 4000 starts in the 2009 – 2010 season) and has a clear record.

 

[48]      In relation to the “Homebush Lenny” charge we agree with Mr Carmichael that an appropriate starting point is a fine of $1500-00.  We have decided that a fine of this amount is appropriate and Mr McInerney is fined the sum of $1500-00.

 

[49]      In relation to the “Addicted To Luv” charge Mr Carmichael has made submissions that an appropriate starting point for a fine in this case is $2500-00.  We agree with this as a starting point, but consider it to be insufficient as this is the second charge in a very short period.  We have decided therefore that the fine in this case should be increased, and accordingly Mr McInerney is fined the sum of $3500-00.

 

[50]      Mr Carmichael also sought the disqualification of the two greyhounds involved in these charges.  Rule 87.4 provides as follows.

 

            “87.4    Any Greyhound which competes in a Race and is found to be the recipient of a

                        Prohibited Substance shall be Disqualified from that Race.”

 

            (i)         There will be an order that “Homebush Lenny” (1) be disqualified from Race 10 at the   Wanganui Greyhound Racing Club’s meeting held at the Hatrick Raceway on 11 June 2010,  and that the stake money earned by that Greyhound be refunded to GRNZ for payment as per the amended placings.

 

            (ii)        There will be an order that “Addicted To Luv” (2) be disqualified from Race 7 at the     Southland Greyhound Racing Club’s meeting held at Ascot Park on 17 June 2010, and that the stake money earned by that Greyhound be refunded to GRNZ for payment as per the amended placings.

 

[51]      No costs were sought by GRNZ.  There will however be an order that Mr McInerney pay costs of $350-00 to the Judicial Control Authority for Racing.

 

 

 

 

 

 

 

__________________                        _________________                         

J. M. Phelan                                         S. C. Ching

Chairman                                           Committee Member

 

Document Actions