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Non Raceday Inquiry NZTR - J Walker - 21 July 2010 - Decision

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BEFORE A JUDICIAL COMMITTEE AT TE RAPA IN THE MATTER OF THE NEW ZEALAND RULES OF RACING

 

Between:

 

INFORMANT:  Mr B F McKenzie, Racecourse Inspector

DEFENDANT:  Mrs Janice Edith Walker, Licensed Class C Trainer

ALSO PRESENT:  Mr J W McKenzie, Chief Racecourse Inspector

HEARING DATE:  12 July 2010

HEARING VENUE:  Te Rapa Racecourse

JUDICIAL COMMITTEE:  R M Seabrook, Chairman – B J Scott, Committee Member

 

Mrs Walker appeared before the Committee to answer a charge filed against her by Racecourse Inspector Mr B F McKenzie.  This charge comes pursuant to rule 804 (2) of the NZ rules of racing being lodged by Mr McKenzie, Racecourse Inspector under Information No 6867.

 

The charge read as follows:

 

THAT the horse SPEELER was brought to the Racecourse at Te Awamutu for the purpose of engaging in the  SL and Computing Services maiden three year old race at the race meeting conducted by the Waipa Racing Club on Wednesday the 16th June 2010, in which said race such horse started AND THAT SPEELER had had administered to it a prohibited substance, namely Caffeine, capable of affecting its speed, stamina, courage or conduct in breach of Rule 804 (2) AND THAT you were the trainer of the horse AND THAT by virtue thereof you are liable to the penalty or penalties which may be imposed upon you pursuant to Rule 804 (6) of the New Zealand Rules of racing unless you satisfy the Committee that you had taken all proper precautions to prevent the administration of such prohibited substance.

 

Mr McKenzie also lodged pursuant to Information No. 41711 a request for a ruling as follows:

 

THAT the horse SPEELER was brought to the Racecourse at Te Awamutu and started in the SL and Computing Services maiden three year old race at the race meeting conducted by the Waipa Racing Club on Wednesday the 16th June 2010 AND THAT SPEELER had had administered to it a prohibited substance, namely Caffeine capable of affecting its speed, stamina, courage and conduct AND THAT by virtue thereof and of the provisions of Rule 804 (1) of the New Zealand Rules of Racing, the said horse shall be disqualified from the said race.

 

Mrs Walker was present and acknowledged she had been served with the charge and the relevant rules which she understood.

 

SUMMARY OF FACTS PRESENTED BY MR J MCKENZIE

 

1.      On the 16 June 2010, the Waipa Racing Club conducted a race meeting at the Te Awamutu Racecourse.  NZTR records show that the registered racehorse SPEELER was entered for and started in race 5 on the programme the SL and Computing Services maiden three year old race.  SPEELER is a 2006 bay filly.

 

2.      The records show the horse is jointly and equally owned by Mr Ian David Vincent and his partner Janice Edith Walker.  Both are long term licensed trainers with NZTR.  The horse was having its first race day start.  It is trained solely by Mrs Walker.  It was 2/3 in the betting.  It carried 55.5 kgs and was ridden by jockey Lynsey Satherley.  It won the race by 3 and ¼ lengths. 

 

3.      Following the race, the horse SPEELER was subjected to a routine post race swab.  It went to the swab box accompanied by Jan Walker.  The swabbing was carried out and the sample was recorded subject to NZTR Swab Card No. 12677.    The urine samples obtained from SPEELER along with all other samples from that meeting were forward by NZTR officials to NZRLS. 

 

4.      By certificate of analysis dated the 29 June 2010, the NZRLS Analysts, reported urine sample No. NZTR 12677 had tested positive to Caffeine and its metabolites.  It was noted on the certificate the reserve (duplicate) sample remained sealed and available for further analysis. 

 

5.      On the 1 July 2010, NZTR Investigators went to 5 St Leger Road and there spoke with Mrs Jan Walker.  She was given a copy of the NZRLS certificate and analysis and a copy of the NZTR swab card.   Her partner and co-owner of SPEELER Mr Ian Vincent was also present but he is in ill health.

 

6.      On being advised of the positive for Speeler to caffeine, Mrs Walker immediately stated that she knew it would be positive.  She went on to explain that before it had raced at Waipa the horse had developed a slight cough and someone had suggested she try it with Itz Magic.

 

7.      She stated she had never used this substance before.  She had purchased a container from the local saddlery and had used it on SPEELER, and other non racing horses, on a daily basis up until two days before it won the race.  She said she only stopped using Itz Magic because the container was empty.  She claimed she didn’t know at the time of the repeated administrations, Itz Magic contained caffeine.

 

8.      She stated that within days after it won the race, she had been looking at the labelling on a new Itz Magic container and saw where it contained caffeine and that there was a recommended 10 day withholding time.  She stated she immediately became concerned because she knew that Caffeine was a prohibited substance.

 

9.      The Investigators took photographs of the stables, obtained samples from a new Itz Magic container and two ‘finishline products’. 

 

10.  The ‘Finishline products labelled as “Airpower’ and U7 Gastric Acid’ were photographed and a sample from each container taken for analysis along with a sample from the container labelled as Itz Magic.

 

11.  By letter of analysis dated 8 July 2010 the NZRLS analysts have reported that caffeine was detected in each of the three samples.  The ‘Finishline’ products have been subject to previous inquiry by NZTR Officials and the NZRLS and a notice placed in the June 2010 NZTM referring to the importance of users knowing the contents of drugs.

 

12.  A written statement outlining an explanation was obtained from Mrs Walker.  Also produced for reference purposes was an identical container of the product Itz Magic which has written material on the label for the benefit of the user in relation to ingredients and racing withholding times.

 

13.  Mrs Walker was totally cooperative with the Investigators throughout this inquiry and deeply embarrassed by her actions.  She has been a trainer with NZTR since 1988.   She has an unblemished record.

 

Mrs Walker had no questions of Mr McKenzie.

 

WRITTEN STATEMENT OBTAINED BY MRS J E WALKER

 

She stated:

 

1.      I reside at 5 St Leger Road, R D 5, Te Awamutu.  Ph 07 871 7860.  I am a licensed Class C trainer with NZ Thoroughbred Racing.  I have held a license since 1988.

2.      I reside at this address with my partner Ian Vincent who is the holder of a class B trainer’s license.

3.      Ian Vincent and myself own jointly the registered racehorse named SPEELER (ISHIGURU – PINES PRINCESS).  It is a 2006 bay filly.  I train this horse.

4.      I can confirm that this horse SPEELER had its first race day start at the Waipa Racing Club meeting at Te Awamutu on the 16 June 2010.  I entered the horse for that race meeting.  The horse started in and won race 5 on the programme that day being the SL and Computing Services race for maiden 3 year olds over 1150 metres for a stake of $6000.00

5.      It was ridden in the race by Lynsey Satherley.  It carried 55.5 kgs.  I can see from the records shown to me that it was 2/3 in the betting.  It won the race by 3 ¼ lengths.

6.      After the race I can confirm the horse was taken to the swab box.  It was accompanied to the swab box by me.  I was present during the swabbing procedures and I have signed the NZTR card a copy of which has been shown to me.  That is my signature.

7.      I have this day the 1 July 2010, been handed by the NZTR Racing Investigators, a copy of a certificate dated the 29 June 2010 from the New Zealand Racing Services Laboratory.

8.      I can see on such certificate that there is a sample number NZTR 12677 quoted.  I confirm the NZTR card that I signed at the time the horse was swabbed has the card number being NZTR12677 and the name of SPEELER on such card as the horse being swabbed.

9.      I can see the certificate confirms the analyst has detected Caffeine, Theobromine, Paraxathine and Theophylline in the urine sample from the horse under that card number.

10.  I am aware that caffeine is a prohibited substance under the Rules of Racing.  I have had it explained to me by the Investigators what the other substances are.

11.  By way of explanation for this positive swab to caffeine, I can state that during part of April and May whilst I was in the States on holiday the horse was looked after by Keith Hawtin.  When I returned and after the horse had trialled at Te Awamutu on the 27 May 2010, I noticed it had a slight cough.

12.  A few days went by and then someone suggested that I try Itz Magic to help with this cough.  I had never used this substance before.  I purchased it at the local saddler.  I was not aware at the time of purchase what was in the substance I purchased.  I did not read the label.

13.  I can confirm that for a period of about four or five days before it started at Waipa on the 16th June 2010, I had fed this substance to the horse with a syringe.  I gave it about 60 mls once a day.  I stopped giving it about two days before the race.  I had to stop because I had run out of it.  At those times I was not aware the Itz Magic contained caffeine.

14.  I have since purchased another container of Itz Magic and that container is still in my stable and of which I have shown the Investigators.

15.  A few days after the horse won the race, I had occasion to then look more carefully at the label on this new identical container.  To my shock I read that the contents contained caffeine and there was a ten day withholding period.  I then became concerned that the swab taken from SPEELER could return a positive.

16.  I can confirm I have been using a product manufactured by Finishline known as ‘Airpower’.  I have read the label on those containers and there is nothing to suggest that it cannot be used at any time.  I am surprised to read the article in the NZTR Monthly that you have brought to my attention where it states that ‘Airpower’ contains caffeine.

17.  I can confirm that horses previously trained by me other than SPEELER have been fed on a daily basis with ‘Airpower’ up to immediately prior to racing but none of those horses had been placed and none were swabbed in fact as a matter of record ran last.

18.  I can also confirm that I do not wish to have a reserve sample sent away for testing.

 

Statement signed by Mrs J Walker and witnessed by Mr B F McKenzie, Racing Investigator.  Mrs Walker confirmed the statement of facts was a correct and accurate summation of the facts.

 

REQUEST FOR A RULING

 

Prior to making submissions as to penalty Mr McKenzie requested this Committee to disqualify SPEELER pursuant to Rule 804 (1) from the SL and Computing Services maiden on the 16 June 2101 at Waipa.  Accordingly this Committee so orders that SPEELER be disqualified from that race with the amended result now being:

 

No 3    THE SHACKLER                               First

No 4    BUTCHER’S DAUGHTER                 Second

No 8    COSMETX                                         Third

No 1    OCTA WHO                                       Fourth

No 5    CARMEN MIRANDA                        Fifth

 

SUBMISSIONS ON PENALTY BY MR J MCKENZIE

 

1.   Mrs Walker has pleaded guilty to a breach of the Prohibited Substance rule   and the Summary of Facts as presented on behalf of the informant has been accepted as a correct record of events.

 

2.      It is of a concern to New Zealand Thoroughbred Racing (NZTR) that we are again before a tribunal of the Judicial Control Authority (JCA) for a breach of the provisions of Rule 804.

 

3.      This is the second positive swab analysed following the collection of a urine sample where a horses has run and won a race, since the introduction of the new edition of the Rules of Racing. ( Rules) in October 2009

 

4.      NZTR has a robust protocol relating to the post race testing of horses, usually involving the winners and stake placed horses.

 

5.      During the course of a season, a total of approximately 3000 horse samples are sent for post race analysis and few return a positive swab.  However where a positive swab is analysed it does generate a negative impression of the racing industry.

 

6.      Most positive swabs are a direct result of negligence, rather than a person setting out to deliberately cause a wilful administration to gain an unfair advantage. It is regardless, a result that is regarded as a covert form of cheating.

 

7.      The racing industry in New Zealand have widely publicised that all horses must race and compete ‘drug free’.  The Rules have been changed to provide, that where a horse is found upon analysis to have in its metabolism a Prohibited Substance where it competes in a race, it shall be disqualified from the race in question.  ( emphasis added)

 

8.      In this case we have a trainer of considerable experience. She holds a Class C trainer’s licence (commonly referred to as an owner trainer). She has purchased, on advice from a colleague, a product, Itz Magic, that is well known to contain the ‘drug’/prohibited substance, caffeine.

 

9.      Her excuse is that she failed to read the label properly, due to poor light.

 

10.  It is also a matter of fact she administered this product over a period of at least four consecutive days, and I submit there would have been ample time for her to carefully read the instructions on a label, where she had no previous experience with the administration thereof.

 

11.  The therefore follows that it must be viewed seriously, that this is a case of gross negligence.

 

12.  It is accepted that Mrs Walker has endured considerable stress through the ill health of her partner Mr ID Vincent.  Mr Vincent is a well known racing identity and has raced with success many horses over the years. He is, as the ownership records show, a part owner in SPEELER with Mrs Walker, but Mrs Walker is the trainer and sole attendant of the horse.

 

13.  Mrs Walker readily acknowledges her mistake and was aware of the likely swabbing result before the Investigators knocked on her door at her home and training establishment.  She acknowledged she did not read the label properly and the only detail she took note of was the volume of dosage.  However when she purchased a further container of the substance Itz Magic, after winning the race, she read the label and knew she was most probably going to receive a visit following the analyst’s findings.

 

14.  Mrs Walker operates a tidy training establishment, ( as shown in the photographs) and being the only  person to attend the horses, and their feeding regime, she has total control and responsibility.

 

15.  Mrs Walker also administers products manufactured by Finishline, one called Airpower, the other U7 Gastric Acid; both have caffeine in their mixture.  Despite the labelling claiming no prohibited substances, NZTR has issued a warning regarding the use of this product, following previous analysis in which caffeine was detected in more than one independently purchased container of the product.  Mrs Walker had no idea of the contents of this product although she administered it to other horses which raced, but all ran last and hence were not subject to a post race swab samples.

 

16.  The new Rules provide for a substantial increase in the penalties and came into force in October 2009. 

 

17.  The principles for sentencing have been clearly established as a guide for tribunals hearing matters connected with racing.  In the 1994 Appeal case of NZTR v P and the Judicial Committee case in 2009 of NZTR v C the principles have been clearly laid out.

 

18.  The principal factor in this case is for the defendant to understand, -careless disregard for the Rules will result in a substantial penalty. The deterrent effect for others like minded, who through negligence fail to carry out their obligations, without a high degree of attention to the specifics of what is permitted, will result in a like penalty, if not greater, for them.

 

19.  The most recent case relevant to penalty was NZTR v N heard before a tribunal on the 31st May 2010. While the end result is similar, in that a positive swab was analysed, the facts are considerably different.  N operates a large training establishment with a number of staff including a foreman to manage day to day operations, including feeding and the administration of supplements and medicines as prescribed by the veterinarian and authorised by N.

 

20.  NZTR inquiries established the administration of the prohibited substance to one of N’s horses was carried out by a staff member, but that person was not identified .N, acknowledged that regardless of who carried out the administration he was vicariously responsible and took total responsibility.

 

21.  This is not the case in this instance.   Mrs Walker is the sole attendant of all horses on the property, and to her credit, readily acknowledges it was she and she alone who purchased, and administered the product Itz Magic to SPEELER, and Airpower to other horses, without properly determining that both contain the prohibited substance caffeine.

 

22.  As has been earlier submitted this is a case of gross negligence at a level considerably higher than that established in the case of NZTR v  N.

 

23.  NZTR submits on behalf of Mrs Walker, there are factors that she can and should be given credit for.

 

·        Her immediate acknowledgement of administration of the product Itz Magic.

·        Her admission she neglected to read the label properly

·        Her complete co-operation with the Racing Investigators

·        Her plea of guilty and saving the need to call witnesses.

·        Mrs Walker has held a licence for a considerable period, since 1988, and has not appeared before a tribunal in breach of the Rules for a like offence.

·        It is acknowledged she has been under extreme pressure in her role as caregiver for Mr Vincent a respected and well known trainer and owner over many years.

·        Mrs Walker operates a tidy training establishment and while the medicine room was not locked, it is in a barn, in a secluded part of the property, where she is the only person attending her horses.

 

24.  The Board of NZTR is determined to have in place a rigorous policy to eliminate the wilful and negligence administration of Prohibited Substances. It has clearly demonstrated with the new penalty provisions that fines will increase and if necessary suspension and disqualification could form part of a penalty.

 

25.  In the case of N a submission was made for a penalty of $6,000.00 because of the particular circumstances in that case, but it was alluded to that a penalty in the range of $7,500 - $10,000 was at this point in time realistic, since the introduction of the new Rules.  The tribunal in that case acknowledged such submissions were appropriate.

 

26.   In this case it has been submitted there is a considerably higher degree of negligence and hence it is further submitted this should be reflected in the penalty.

 

27.  In this case, given all the circumstances, it submitted on behalf of NZTR that a fine on the range of $8,000 - $12,000 is appropriate.  It is also submitted that if fines do not deter further breaches of this rule in cases of negligence, where it is found that gross negligence is a factor, such as in this case, a period of disqualification or suspension will in addition be sought.

 

28.  On the issue of Costs.  Costs in these inquiries are inevitable.  Costs have been incurred in having exhibits collected from the stable and forwarded to the Racing Laboratory for analyses.  These along with the costs associated with the inquiry, the presentation of the prosecution and travel will be considerable.  In assisting NZTR recover part of those costs, it is sought costs be awarded at the sum of $1,000 to NZTR, plus any costs incurred by the JCA.

 

Mrs Walker did not wish to make any submissions on penalty.  She asked for leniency, said she had worked hard and money was not easy to come by.

 

PENALTY REASONS

 

The Committee is very mindful that in a case like this the integrity of racing is compromised and regardless of how the drugs got there it is the public perception that is always a concern.  Mr McKenzie has quite correctly, in his submissions, pointed out that regardless of how a horse is found to have had administered to it a drug or prohibitive substance that is capable of affecting speed, stamina, courage or conduct it is deemed to have had an unfair advantage.  It is the objective of the NZTR to have a level playing field for all those who participate in racing.  This has been widely publicized and is reflected in the increase in penalty provisions which became effective on the 5th October 2009.

 

The Committee is satisfied that in the case before us today there was no evidence to suggest Mrs Walker had acted wilfully to gain an advantage.  Had this been the case she may well have been charged under the provision of a serious racing charge. However we do find that the administration of ‘Itz Magic’ without proper investigation into its contents constituted gross negligence on her part.  Mrs Walker clearly failed in her responsibilities as a trainer made worse by her repeated use of the product without regard to the consequences.  We find Mrs Walker had ample opportunity during the 4 days in question when she administered ‘Its Magic’ to read the data and confirm a withholding time of ten days applied.

 

Mrs Walker made brief reference to the recent case of NZTR v N.  She inferred that any penalty imposed upon her should be based upon that decision.  We simply cannot agree.  As stated above, there was vicarious responsibility in the N case and in this case we find, as a matter of fact, gross negligence on the part of Mrs Walker.  She has purchased a product on the recommendation of someone whose name she could not recall at this hearing.  She has told us that she has bought it over the counter and in a rush and she has made no enquiry whatsoever as to the contents of the product and has then proceeded to give it blindly to Speeler leading up to race day.  She tells us that she gave it over a period of 4 days and did not on any of those days read the label, make enquiry as to the contents of “ Itz Magic”, nor has she checked to see if that product has a withholding time.  These are elementary precautions that any reasonable Trainer would take.  Mrs Walker further tells us that she had only stopped giving Speeler the Itz Magic prior to race day because she ran out of it and needed to get some more.  It is quite extraordinary that any Trainer would give an unknown product to a horse that was about to race without taking any of the precautions previously mentioned.  In not doing so we find Mrs Walker to be grossly negligent. 

 

We are also told that Mrs Walker has been using “Finishline”, products which are labeled as “Airpower” and “U7 Gastric Acid’.  We are also told that those are prohibited products and indeed NZTR gave notice of that in the June NZ Thoroughbred Monthly magazine.  Mrs Walker acknowledged to this Committee that she receives that Publication each month and that she reads it but for some reason she has not seen the notice about Finishline products.  We are told that on the label of Finishline products that there is advice to Trainers that the products do not contain any prohibited substances.  Notwithstanding that there has been an official notice from NZTR in it’s official magazine to Trainers stating the opposite.  Mrs Walker has not taken heed of that notice and although such products are not part of today’s proceedings it is indicative of how Mrs Walker deals with these products and how she finds herself in this situation today. 

 

It is clear to this Committee that Mrs Walker has been grossly negligent and as such her case is totally different from that in NZTR v N. 

 

The Committee is aware of the recent NZTR v N decision and we recognize the difference in the degree of culpability as submitted by Mr McKenzie.   In that case the trainer was vicariously responsible for the actions of his staff but here Mrs Walker was solely responsible for what the Committee finds was gross negligence. 

 

The Committee has considered and taken into account several mitigating factors.  The mitigating factors referred to in the submission of NZTR which were of benefit to Mrs Walker and assisted us to have a better overview of the position are:

1.      Mrs Walker’s guilty plea and her full co-operation with the investigators.

2.      Her long and blemish free record within the industry and that this was her first offence under this rule.

 

We also acknowledge the stress that Mrs Walker has been under following the serious illness of her partner.  However this is no excuse for her negligence in the administration of a substance which she claims to have no knowledge but it is widely recognised and documented to contain caffeine. 

 

We do find this breach of rule 804 (2) to be one of gross negligence and that the penalty imposed must reflect that fact and be a deterrent to all in the industry.

 

We have considered the quantum of penalty submitted on behalf of NZTR (between $8000 - $12000) and are mindful of the penalty increases pertinent to the rule 804 which now provides for fines to a maximum of $25,000.  We have found that gross negligence is the aggravating factor in this case and warrants our decision to be above the penalty for negligence or accident in the medium to lower scale.

 

PENALTY

 

Mrs Walker when asked had no submissions to make on costs.

 

Accordingly after careful consideration of all the above facts we impose a fine of $9500 on Mrs Walker and in addition order that she pays costs of $1000 to NZTR and $550 to the JCA.

 

The Committee further orders that following the disqualification of SPEELER that any stake money received by the connections of that horse be repaid to NZTR for distribution to the amended winner and place getters.

 

 

R M Seabrook                                     B Scott

Chairman                                            Committee Member

 

 

 

Footnote

Information in paragraph 5 of the Summary of Facts presented by Mr J McKenzie has been suppressed for privacy reasons.

 

 

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