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Non-Raceday Inquiry - P Schrafft



1004.2
1004.1

The defendant was charged with a breach of Rule 1004(2) of the Rules of Thoroughbred Racing, namely that:

He brought the horse DOLLY DAGGERS to the Opunake Racing Club race meeting at New Plymouth on 13th December 2007 and started it in a race AND THAT the horse had had administered to it a prohibited substance

 

DECISION OF JUDICIAL COMMITTEE:

 

The defendant was charged with a breach of Rule 1004(2) of the Rules of Thoroughbred Racing, namely that:

(1)   He brought the horse DOLLY DAGGERS to the Opunake Racing Club race meeting at New Plymouth on 13th December 2007 and started it in a race AND THAT the horse had had administered to it a prohibited substance, namely morphine, capable of effecting its speed, stamina, courage or conduct.

 

(2)   He brought horse DOLLY DAGGERS to the Taranaki Racing Club race meeting at New Plymouth on 27th December 2007 and started it in a race AND THAT the horse had had administered to it a prohibited substance, namely morphine, capable of effecting its speed, stamina, courage or conduct.

 

Rule 1004 (2) provides:

When a horse which has been bought to any racecourse or similar racing facility for the purpose of engaging in any race or trial to which the fifth appendix hereto applies is found by any tribunal conducting an inquiry to have had administered to it or have had present in its metabolism any prohibited substance, capable of affecting its speed, stamina, courage or conduct, the trainer and any other person who in the opinion of any Tribunal conducting an inquiry was in charge of such horse at any relevant time commits a breach of these rules unless he satisfies the Tribunal that he had taken all proper precautions to prevent the administration or presence of such prohibited substance.

 

A Request for a Ruling was also sought with regard to the above and by the virtue of the provisions of Rule 1004(1) of the New Zealand Rules of Racing that DOLLY DAGGERS be disqualified from its races on the 13th and 27th of December 2007 respectively.

 

FINDING.

Mr Schrafft admitted the breach and therefore the charge was found proven.

  

THE FACTS

 

DOLLY DAGGERS is a 4 year old chestnut mare, which is trained at Hawera by Permit to Train Holder Mr Peter SCHRAFFT. The horse is owned by Mrs B M Schrafft (the defendant’s Mother) Mrs A J Needham and Mr J H Scott.

 

DOLLY DAGGERS started in Race 6 in the Newstalk ZB Maiden at the Opunake Racing Club Meeting run at the Pukekura Raceway at New Plymouth on Thursday 13th December 2007. The horse won the race and was then taken to the swabbing box for swabbing.

 

The horse was accompanied to the swab box by Mr Schrafft. The swabbing was carried out in accordance with the directives of New Zealand Thoroughbred Racing with the collection of the urine sample and the relative documentation attended to before the sealing of the samples for dispatch to New Zealand Racing Laboratory Services. The urine sample collected from DOLLY DAGGERS was issued with Swab Card Record Number 02579.

 

On Thursday the 27th December 2007 DOLLY DAGGERS started in Race 5 in the California Sun & Beauty 1300 at the Taranaki Racing Club Meeting run at the Pukekura Raceway, New Plymouth. DOLLY DAGGERS won the race and was again taken to the swabbing box for swabbing.

 

The horse was again accompanied to the swab box by Mr Schrafft.

The swabbing was carried out in accordance with the directives of New Zealand Thoroughbred Racing with the collection of the urine sample and the relative documentation attended to before the sealing of the samples for dispatch to New Zealand Racing Laboratory Services. The urine sample collected from DOLLY DAGGERS was issued with Swab Card Record Number 06380.

 

On 28th December 2007 (day after 2nd Race), the official Racing Analyst, by way of a Certificate of Analysis identified that the urine sample NZTR 02579 was received in the laboratory with all seals intact on 18th December 2007 and was given laboratory number 07/7203. His findings were that the urine sample contained the drug Morphine. The control sample was negative.

 

Morphine is a prohibited substance as defined under Rule 105 of the New Zealand Rules of Racing and Dr Andrew Grierson, New Zealand Veterinary Consultant for New Zealand Thoroughbred Racing has confirmed that fact in a written opinion.

 

On the 8th January 2008 Racecourse Inspectors visited Mr Schrafft at his property at Eltham to speak to him about the analyst’s finding. Due to the large number of race meetings over this period it had not been possible to visit Mr Schrafft any earlier. On arrival at his property Mr Schrafft was home alone. Mr Schrafft was advised of the positive swab from the Opunake Race Meeting and given a copy of the Certificate of Analysis (Previously Produced).

 

When the Inspectors first introduced themselves on arrival Mr Schrafft queried whether our presence was related to “Dolly Daggers” win. He indicated that he had a feeling about it.

 

When Mr Schrafft was advised that the positive swab was to Morphine he expressed surprise and denied having any knowledge of how the horse DOLLY DAGGERS could have returned a positive sample.

 

Mr Schrafft was able to advise the inspectors of all recent veterinary services carried out on the horse, none of which would have resulted in the positive swab to Morphine. He advised that the only substances that he was administering to the horse were Aspirin, and Kelp Powder.

 

The horse “DOLLY DAGGERS” had returned to racing after having been declared a bleeder in February 2007.

 

After speaking to Mr Schrafft for some time he was asked if the horse had had access to any other feed for example poppy seeds' Mr Schrafft then stated that he had a small native plant plot at the rear of his property which had a number of poppy plants growing therein.

 

He advised the inspector that the plants had grown to over 6 feet and that he had seen DOLLY DAGGERS nibbling at the plants prior to her race at the Opunake Race Meeting and the Taranaki Race Meeting. The plants had been hanging over the native plant plot fence into the paddock in which the horse had been.

 

The Inspectors with Mr Schrafft then went to the area concerned. There were a number of smaller poppy plants growing out of reach of any animals but there were a large number of plants that had been pulled out and were lying on the ground.  Mr Schrafft stated that he had only pulled them three or four days earlier, prior to the Inspector’s arrival. It appeared however that they had been pulled for some time due to the state of decay.  A number of samples of the live and dead plants were taken by the Inspectors. Photographs were taken of the plants and area concerned.

A brief written statement was then taken from Mr Schrafft in relation to the poppy plants.

 

The Inspectors also examined the feed and gear rooms on the property and took samples of the Aspirin Powder. Mr Schrafft’s property and his feed and gear rooms are kept in an immaculate condition.

 

Mr Schrafft was also advised that the second swab from the Taranaki meeting had showed signs of being irregular but that the Analyst had not yet issued a certificate.

 

After leaving the property the Inspectors made enquiries with the vet firms that had had contact with Mr Schrafft but these did not reveal any other likely reason for the positive swab.

 

On the 10th January 2008 (day after visit to Mr Schraffts property), the official Racing Analyst, by way of Certificate of Analysis identified that the urine sample NZTR 06380 was received in the laboratory with all seals intact on 4th January 2007 and was given laboratory number 08/0085. His findings were that the urine sample contained Morphine. The control sample was negative.

 

Mr Schrafft nominated DOLLY DAGGERS for a race at the Marton Jockey Club Meeting at Awapuni on the 12th January 2008. In view of the fact that the horse had produced two positives at its last two starts NZTR requested that a clear sample be obtained from the horse prior to it starting.  On Wednesday 9 January local Eltham Vets obtained a urine sample from the horse and this was forwarded by overnight courier to the Racing Laboratory.  The sample was received by the laboratory and an urgent analysis was carried out on the sample for the presence of morphine only. This analysis took over four hours to complete and morphine was not detected in the sample.

 

DOLLY DAGGERS subsequently ran in the race on the Saturday 12 January 2008, at the meeting of the Marton J.C. at Awapuni racecourse but unfortunately bled and as a consequence the horse can no longer race in New Zealand.

 

On the 10th January 2008 Samples of the poppy plants taken from Mr Schraffts property were delivered to the Racing Laboratory along with a quantity of the Aspirin. These samples were analysed for the presence of morphine. There was no trace of morphine in the jars of Aspirin however morphine was detected in the poppy plant sample.

 

A quantity of the poppy plants taken from Mr Schraffts property were also delivered to Dr Grierson and fed to a mare. It is a known fact that most horses do not like poppy plants and Dr Grierson had to blend the plant material with other feed and it was delivered to the mare by naso-gastric tube. The exact amount of plant material delivered to the mare was not able to be determined. Samples of urine were taken from the mare at 11.5 hours, 22 hr periods and 48 hours, after ingestion.

These urine samples were later delivered to the Racing Laboratory. Large concentrations of morphine were detected in the 11.5hour and 22 hour urine samples. An indication of a trace of morphine was present in the 48 hour sample.

 

Mr Schrafft was again spoken to at the Marton JC Race Meeting. He felt certain that the only explanation for the positive swabs is the poppy plants that were growing on his property. He also confirmed that he had been present when both swabs had been taken and he was satisfied that all procedures were carried out correctly. It should be noted that he has co-operated with the Racecourse Inspectors at all times.

 

Mr Schrafft was first registered as an Owner Trainer in 1997 and has held a Permit to Train since the 2004/05 season.

 

Following the presentation of the Summary of Facts Mr Schrafft read a prepared statement the thrust of which was that he had been the recipient of “some excruciatingly bad luck”

He also stated that NZTR were at fault with regard the second positive test as they had been too slow in notifying of the first positive test.

Mr Schrafft went on to say that all he was asking for out of this hearing was “common sense justice”

 

PENALTY SUBMISSIONS;

 

Prior to commencing his submissions on penalty Mr McKenzie addressed the committee with regard the way he would be treating the two breaches of the Rules. This being that notwithstanding there were two charges filed with respect to two independent breaches of the Rules; the two breaches could be dealt with by way of one penalty for a breach of Rule 1004(2)

That being that the offences be treated as a common breach

 

Mr McKenzie when commencing his submissions on penalty drew the committee’s attention to the need for the public to have confidence in horses being presented to race free of any drug. He elaborated by saying that warnings were in place with regard to substances that were prohibited.

 

It was submitted that on this occasion Mr Schrafft had been negligent and careless in planting poppy plants within easy access of his horses. However it was accepted that Mr Schrafft did not wilfully set out to plant the poppy plants for them to be then ingested by his horses.

Nevertheless Mr McKenzie did submit that when the property was visited by NZTR investigators it was noted that poppies that had been growing in close proximity to the fence, where the horses could reach them, had been pulled out and left to decay. These appeared to have been in a much more advanced state of decay than having been removed just 3-4 days prior.

 

It was Mr McKenzie’s submission that NZTR did not wish to seek interference with Mr Schrafft’s licence but rather it was his contention that the breaches could be dealt with by way of a monetary penalty.

He also stated that Mr Schrafft could be given a reasonable period of time to make full and final settlement.

 

Mr Schrafft when addressing the committee stated that this was in his opinion a ‘unique and bizarre case’ He contended that he would rather take a period of disqualification as he had no horses in work.

 

Mr McKenzie responded by stating that he was opposed to a penalty of convenience and it was his belief that penalties imposed should act as a deterrent.

 

PENALTY.

 

The primary concern of this Committee when determining the penalty to be imposed is the maintenance of the integrity of Thoroughbred racing and indeed the racing industry as a whole.

 

The detection of a drug in a thoroughbred which has competed and won an event whilst the drug was in its system is a serious offence. It is serious because it is detrimental to the image of the industry and has the very real potential to affect the confidence of the public that supports thoroughbred racing by investing on the outcome of races.

 

In this case it has been submitted that there has been no intent with regard the two positive test results and this committee accepts this position, however the planting of the poppies in such proximity where they have resultantly been ingested by DOLLY DAGGERS is, in the view of this committee, negligent and careless.

 

Mr Schrafft has a property that has been described by Mr McKenzie as being ‘beautifully laid out with the grounds being a picture’. However in an attempt to further enhance its appeal Mr Schrafft has, in error, planted poppies that have been eaten by DOLLY DAGGERS and this has ultimately resulted in him being before a Judicial Committee charged with drug related breaches of the Rules.

And while it has been argued by Mr Schrafft that this is somewhat of an unfortunate situation it nevertheless has resulted in a devastating outcome for him.

 

The facts are that by way of his actions Mr Schrafft has allowed DOLLY DAGGERS to return two positive tests to morphine over a very short period of time. It is also very unfortunate that the first positive test result was not known prior to the second breach taking place.

However Mr McKenzie has, given the timing circumstances that existed over the holiday break, submitted that this breach should be treated as a common breach. We are also of this view and therefore have adopted this position when determining penalty.

 

We are also inclined to the view that the appropriate penalty is the imposition of a fine and to this end we have been provided with the findings of previous Committees and Appeals Tribunals and we are grateful for this. However while we find such material of assistance it also demonstrates to us that there exists a wide and diverse range of penalties imposed for breaches of the Drug Negligence Rule.

It is apparent however there has, over the years, been a ratchetting up of penalties for breaches of the drug negligence rule and we are mindful of this.

We also believe that in order to maintain the integrity of racing penalties reflecting the seriousness of the matter need to be imposed.

.

In this case before us Mr Schrafft has been that person in charge in all respects of DOLLY DAGGERS and it has been his duty to present it drug free. He has not done so.

And while it has been argued that this is just bad luck this committee is not inclined towards this view.

We must note that from the evidence it would appear to us that Mr Schrafft may have had an inclination something may have been awry as the offending poppies appear to have been removed many days prior to those recalled by him.

 

In determining the quantum to be imposed we have taken into account the submissions of both parties. We have also had regard to penalties imposed by other Committees and Appeals Tribunals.

 

Given all that we have heard we find that the level of offending sits somewhere mid range and after giving due consideration we find that Mr Schrafft be fined the sum of $4,000.

 

In arriving at penalty in this case the Committee has taken into account the following mitigating factors:

1.       The admission of the breach.

2.       That the defendant has been cooperative with NZTR officials throughout the duration of the investigation.

3.       That the defendant has a clear record since his involvement in the industry.

4.       That the consumption of the poppies by DOLLY DAGGERS was unintentional on Mr Schrafft’s part.

 

COSTS;

 

Mr McKenzie, after detailing what had transpired with regard to this prosecution, requested costs in the order of $1,000.00 He stated that the actual costs were far in excess of this figure however he submitted that given the circumstances pertaining to the defendant that this was an acceptable sum.

He submitted that these costs were in no way reflective of the total costs borne by NZTR in bringing this prosecution. He submitted they were merely those costs relating to travel and accommodation.

 

Mr McKenzie also went on to request to make an order with regards the costs established in processing the urine sample of DOLLY DAGGERS prior to it racing at Manawatu on 12 January 2007. These being in the order of $585.00.

 

DECISION ON COSTS.

 

The committee finds that the costs requested by NZTR are appropriate and we make an order that cost be costs of $1,000 be awarded to NZTR.

Mr McKenzie’s request that we make an order for $585.00 to be paid to the Racing Laboratory for the urgent processing of the urine sample is declined.

This is a matter between the laboratory and Mr Schrafft as when this service was provided the laboratory invoiced Mr Schrafft directly. We do not feel inclined to involve ourselves in a matter between the laboratory (who is an independent body) and the defendant.

Should Mr Schrafft default on this payment then sufficient mechanisms exist within the NZTR framework to recover the monies.

 

Also the costs of this committee being convened are considered and accordingly we order costs of $500.00 payable to the JCA.

 

 RULING.

 

As per the provisions of Rule 1004(1) we make an order confirming the disqualification of DOLLY DAGGERS from its races on 13th December and 27th December respectively.

 

 

 

Ross Neal,

Chairman.

 

19th February 2008

 

 

 

 

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