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Non Raceday Inquiry - R H Swain 22 Feb 09 Decsn 27 Feb 09



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Raceday Inquiry - R H Swain 22 Feb 2009

The Defendant is charged with one breach of Rule 1004(1), (2), (7) and (8) of the Rules of Harness Racing.  The charge (Information 63981) preferred by Racecourse Inspector Scott reads as follows –

 

“I, the above named informant allege that the above named Defendant

committed a breach of Rule 1004(1),(2), (7) and (8) in that on the 26th day of April 2008 Robin Henry Swain was  the trainer and the person for the time  being in charge of the  horse ROMAN GLADIATOR which was presented to race in the Hecton Products Limited Southern Country Cups Final (Race 9) at a race meeting conducted by the Invercargill Harness Racing Club at Ascot Park when the said  horse was found to have had administered to it a prohibited substance, namely Dimethyl Sulphoxide (DMSO).”



BEFORE A JUDICIAL COMMITTEE

AT INVERCARGILL

IN THE MATTER of the

New Zealand Rules of

Harness Racing

 

                                                BETWEEN                Norman Thomas Scott                                                                               

Informant

 

AND                           Robin Henry Swain

 

                                    Defendant

 

PARTIES:                                                      Racecourse Inspector Mr N T Scott for Harness Racing New Zealand

 

                                                                        Mr R H Swain          

 

Mr B Bell (Specialist in equine surgery)                        

 

JUDICIAL COMMITTEE:                             Mr N Skelt (Chairman)

                                                                        Mr D Steel                                                      

 

DATE OF DECISION:                                 27 February 2009

 

 

 

Raceday Inquiry - R H Swain 22 Feb 2009

The Defendant is charged with one breach of Rule 1004(1), (2), (7) and (8) of the Rules of Harness Racing.  The charge (Information 63981) preferred by Racecourse Inspector Scott reads as follows –

 

“I, the above named informant allege that the above named Defendant

committed a breach of Rule 1004(1),(2), (7) and (8) in that on the 26th day of April 2008 Robin Henry Swain was  the trainer and the person for the time  being in charge of the  horse ROMAN GLADIATOR which was presented to race in the Hecton Products Limited Southern Country Cups Final (Race 9) at a race meeting conducted by the Invercargill Harness Racing Club at Ascot Park when the said  horse was found to have had administered to it a prohibited substance, namely Dimethyl Sulphoxide (DMSO).”

 

 

 

 

 

 

DECISION OF THE JUDICAL COMMITTEE

 

 

The Defendant is charged with one breach of Rule 1004(1), (2), (7) and (8) of the Rules of Harness Racing.  The charge (Information 63981) preferred by Racecourse Inspector Norman Scott reads as follows :

 

“I, the above named Informant allege that the above named Defendant committed a breach of Rule 1004 (1), (2), (7) and (8) in that on the 26th day of April  2008 Robin Henry SWAIN was the trainer and the person for the time being in charge of the horse ROMAN GLADIATOR which was presented to race in the Hecton Products Limited Southern Country Cups Final, Race 9 at a race meeting conducted by the Invercargill Harness Racing Club at Ascot Park when the said horse was found to have had administered to it a prohibited substance, namely Dimethyl Sulphoxide (DMSO).”

 

Rule 1004(1) and (2)

Rule 1004(7) and (8) – Penalty Provisions.

 

Rules 1004(1) and (2), referred to above, which come under the Prohibited Substance Rule, read as follows:

 

            “(1)      A horse shall be presented for a race free of prohibited substances.

 

(2)       Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.”

 

Mr Swain had endorsed on the Information that he admitted this breach of the Rules, and also that he did wish to attend the hearing. 

 

Summary of Facts:

 

Mr Scott produced the following documents which are relevant to this charge.

 

Exhibits as presented :

 

A.     Authority from General Manager HRNZ to bring a charge under Rule 1103 (4)

B.     Computer print out of Race 9 result, Hecton Products 2007 Ltd Southern Country Cups Final run by IHRC on 26/4/08

C.    Swab card 23394-ROMAN GLADIATOR 

D.    Certificate of analysis dated 28th October 2008

E.     Prohibited Substance Regulation-HRNZ Regulations

F.     Extract from NZEVA’S – Recommended withholding times for Therapeutic Substances

G.    Transcript of interview of Mr Swain by Racecourse Inspector

H.    Statement submitted by Doctor Bell-Veterinary Surgeon to HRNZ

 

Mr Swain was the trainer, and the person in charge, of the horse ROMAN GLADIATOR which was correctly entered for and started in Race 9, Invercargill Harness Racing Club at Ascot Park on 26 April 2008.  ROMAN GLADIATOR finished first in this race earning a starter’s stake money of $18,500.

 

ROMAN GLADIATOR was post race swabbed and the sample sent to the Racing Laboratory.  On 28 October 2008 the Racing Analyst advised that the sample had tested positive to Dimethyl Sulphoxide (“DMSO”), which is a prohibited substance when present in urine at a concentration of more than 15 milligrams per litre.  The analysis detected a concentration of greater than 500 milligrams per litre.  The recommended withholding time for DMSO is 48 hours, based on a dose of 50 grams.

 

Mr Swain was interviewed about this matter on 28 August.  The administration was carried out by local Gore vet Ewan Miller, who tubed it into the stomach of ROMAN GLADIATOR on Mr Swain’s instructions.  200 grams was administered on the directions of a Veterinarian, Doctor Brendan Bell.  Mr Swain said that the administration of the drug took place on 24 April, probably around 12pm with the knowledge that the drug had a two day withholding period and that the time of the race to be run on the 26 April would have been 5pm or 6pm.

 

Doctor Bell made a statement confirming that he had dispensed DMSO to Mr Swain, and provided him with instructions for use and recommendations regarding withdrawal times.  Dr Bell explained that for the previous 2 years there had been the widespread understanding among veterinarians in New Zealand that it was acceptable to give up to 200ml to horses at least 48 hours before racing.  Dr Bell also said that he had previously practiced in U.S.A and had been using DMSO in horses for over fifteen years.  Mr Bell stated that the treatment of ROMAN GLADIATOR was for a respiratory condition, not as a performance enhancing drug.

 

It is also of particular interest that Dr Bell produced a letter from Dr Andrew Grierson (Convenor Medication Sub Committee, New Zealand Veterinary Association) who clearly stated, “ to date, there is no study where there are sufficient numbers to allow statistical analysis with any degree of confidence”.   He also stated that compounding the problem is the apparent variability between animals.

 

Submissions on Penalty:

 

Mr Scott said that a starting point when fixing a penalty in this case was a fine of $750-00, which was the fine imposed in the recent decision of HRNZ v Small and Crouth where the circumstances were similar.

 

Mr Scott said that the Mr Swain should be given credit for the following matters:

 

-        Mr Swain’s early admission of the breach, and his agreeing to the matter being heard at the first opportunity and without the need for a non race day hearing, thus significantly reducing any cost to the Informant.

-        That the administration was carried out on the instructions of an experienced Veterinarian.

-        Subsequent tests carried out by the official racing veterinarian on a horse likewise testing positive to DMSO has cast serious doubts upon the validity of the recommended withstanding times, particularly if the recommended dose is exceeded.

-        That Mr Swain has had a long association with the Harness Racing industry and has not previously appeared on any charge of this nature having been involved for 30 years in the industry.

Also

-        It was noted in a letter from Harness Racing New Zealand’s General Manager, Mr Edward Rennell (exhibit A) point four that ‘I would expect the issue of reliance on veterinary advice to be taken into account in mitigation on any penalties’.

 

Decision on Penalty:

 

Rule 1004(7) provides the penalties applicable in this case, as follows.

 

“(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

          (a)  a fine not exceeding $10,000;  and/or

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

 

In Fixing Penalty:

 

-        Mr Swain has admitted the breach and was totally co-operative and professional throughout the process.

-        We accept that he received the wrong advice from his veterinarian, and we also accept that he should have been able to rely on that advice. 

-        That Mr Swain has an outstanding record and a long association with Harness Racing.

-        Mr Swain did not act in a deliberate nor knowing matter to breach this rule

 

 

 

Decision:

 

The committee accept strict liability in this case applies, however this aspect of the rule may not be seen as fair and reasonable in certain circumstances. In the committees opinion there are many mitigating circumstances which are compelling and overwhelming in favour of Mr Swain, given his reliance on professional advice that he actively sought.

 

The committee is totally satisfied that in this situation that Mr Swain is merely a victim of circumstance outside what we believe was his professional obligation.  

 

We accept and acknowledge Mr Bells professionalism and frankness in his evidence and accepting total responsibility for the professional advice given to Mr Swain.

 

The committee is deeply concerned that to maintain the integrity of the Harness Racing industry that the current variations around the withholding period must withstand more robust scrutiny, and in this case they failed.

 

Mr Bell acted in good faith and from a long history and knowledge of treating ROMAN GLADIATOR from the early days as a yearling and throughout his highly successful racing career.   He gave professional advice under the prescribed and accepted guidelines within the industry, and what is known as a non performance enhancing drug.

 

Penalty:

 

In considering penalty the Committee are satisfied that the Crouth and Small decisions were different in nature and intent.  The winning stake money of $18,500 is significant as Mrs Swain owns a half share in ROMAN GLADIATOR, and Mr Swain’s winning training percentage was also financially significant, and in this instance far exceeding the financial loss occurred in both the Crouth and Small decisions.

 

Imposing any further financial penalty to Mr Swain, in our opinion would be going against the clear principles of natural justice which must be upheld.

 

As a result no financial penalty was imposed on Mr Swain. 

 

 

Disqualification:   

 

Rule 1004(8) of the New Zealand Rules of Harness Racing provides as follows.

 

“(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.”

 

Accordingly it is mandatory to disqualify ROMAN GLADIATOR.  ROMAN GLADIATOR is therefore disqualified from Race 9, Invercargill Harness Racing Club at Ascot Park on 26 April 2008.  In accordance with Rule 1115(4) the stake money is to be refunded to HRNZ and dealt with according to their rules.

 

Costs: 

 

Mr Scott did not seek costs on behalf of HRNZ. 

 

 

 

N D Skelt, Chairman

D Steel 
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