RACING APPEALS TRIBUNAL NEW SOUTH WALES

Transcription

1 RACING APPEALS TRIBUNAL NEW SOUTH WALES TRIBUNAL MR DB ARMATI EX TEMPORE DECISION FRIDAY 20 NOVEMBER 2015 LICENSEE PETER REYNOLDS AUSTRALIAN HARNESS RACING RULE 190(1) SEVERITY APPEAL DECISION: 1. Penalty of 15 months disqualification varied to 14 months disqualification 2. Appeal deposit forfeited

2 1. Licensed trainer Mr Peter Reynolds appeals against a decision of the stewards of Harness Racing New South Wales to impose upon him a period of disqualification for a breach of the prohibited substance rules. That disqualification was imposed at the inquiry which concluded on 24 September The stewards particularised the breach in the following terms Rule 190: (1) A horse shall be presented for a race free of prohibited substances (2) If a horse is presented for a race otherwise than in accordance with sub rule (1) the trainer of the horse is guilty of an offence. (4) An offence under sub rule (2) or sub rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse." The stewards particularised that breach in the following terms: " you, Peter Reynolds, a trainer licensed by Harness Racing New South Wales and being the trainer of the horse Precious M (NZ) did present that horse at Dubbo on Sunday, 13 September, 2015 to contest Race 6 prior to which a prerace blood sample was taken and upon analysis has detected a prohibited substance, namely TCO2 at a concentration above 36 millimoles per litre." 3. In the course of the stewards' inquiry, which proceeded over one day, and at the end of the investigative process, the breach of the rule was read to the appellant and after an exchange he pleaded not guilty. After a short adjournment, a finding of guilt was made and the penalty imposed. On lodging the appeal to this Tribunal, he has not contested the finding of breach of the rule and this is a severity appeal only. That history will be relevant to the discount, if any, that should be applied to him for an admission or otherwise of the breach. 4. The appellant does not contest the two key ingredients that have to be established: that he presented the horse to race and that it contained in it an elevated level of TCO2. He does raise, in mitigation of penalty, a series of facts which he says explains why that presentation at that level took place. It is the case for the respondent Harness Racing NSW, consistent with the Regulatory Vet Dr Colantonio's evidence, that the probable reason for the elevated TCO2 reading was that the horse was given an alkalising agent and that the particular feeding regime, to which the Tribunal will return, did not put the reading above 36, no other factors did so, and the horse was given an alkalising agent within 12 hours before the blood was taken. Page 2

3 5. It is the case sought to be advanced on behalf on the appellant that a combination of electrolytes and dehydration had caused the elevated readings. The readings in fact were 37.5 and 36. The difficulty that confronts the appellant in respect of each of the two reports that he has put forward are the circumstances surrounding those reports and a lack of a certain range of factual matters which could enable those reports to retain the weight which is sought to be placed upon them. 6. The first report was by Dr Biffin, a senior nutrition consultant, who has a Bachelor of Veterinary Science and a Diploma in Education. There is no doubt he is experienced horse dieterary matters, as that might otherwise be described. 7. He provided an undated report based upon information that he was given. He expressed familiarity with cases of elevated TCO2 because of dehydration and he has been aware of such issues since He analysed, to use his terms "your diet and the electrolytes are quite high". He set out levels for sodium, potassium, calcium, magnesium and chloride. At this stage, for the determination the Tribunal is otherwise going to make, it does not propose to closely analyse each of those substances and their levels and the reasons for that will become apparent. He then opined that each of those doses was above the recommended daily requirements, which was not an issue unless the horse becomes dehydrated. He then said: "If he becomes dehydrated with levels, he will manufacture bicarbonate to balance the system, and could easily make excess." It is accepted that what he meant was excess TCO2, when read. 8. He was given a list of items fed to the horse. Exhibit 17 before the stewards was correspondence from the appellant which set out that which he fed the horse. It is quite apparent that what Dr Biffin was assessing was not precisely what was fed to the horse. The horse was fed Koola Komplete and Prides Stamina, and was given as well vitamins and minerals, particularly what is well-known in the trade as a mix, plus Kohnkes Cell-Salts, and a number of other products which can be disregarded so far as electrolytes are concerned. 9. The Tribunal accepts that Dr Biffin is well familiar with electrolytes in horses and able to give the evidence about electrolytes and the impact of electrolytes on the metabolism of a horse. The difficulty is that he was not told everything that the horse was fed, such that the analysis of the diet, based on what he was told and what he researched, was not the whole of the diet. The Tribunal is left with uncertainty, therefore, as to what if any balancing or other effects against elevated electrolytes might flow from other substances. Page 3

4 10. It is not necessary to analyse the rather technical evidence about the effect of electrolytes upon the internal working processes of a horse once it has been fed. Importantly, he was able to reflect upon the fact that the particular electrolytes which he was able to identify were not only quite high, but when taken as an individual treatment he acknowledged they would peak some 4 to 6 hours after consumption. He also went on to say that if they were given every day regularly, they would cause a high bicarbonate level in a horse in other words, a cumulative effect. 11. It was his opinion that the supplements alone would not put a horse up from 30 to 36, at which the prohibited level comes into operation. It could be, assuming a base level of 30, up to 33. The evidence appears to be uncontroversial, both from Dr Biffin, Dr Crosby and Dr Colantonio, that an elevation of some 2 to 3 would take place by alkalising agents, particularly by way of electrolytes. 12. He was quite adamant that dehydration would cause increases in levels. The Tribunal interposes to note that there is no research available to it, or apparently to the parties, which indicates that a level increase of some 2 might occur by dehydration, but that it was said that if there was a base level of 30, there could be an increase from electrolytes of 3 and an increase from dehydration of 2, which would get you up to 35 but would not put you over the limit. 13. For dehydration to have any impact, Dr Biffin said it would have to be at a level of some 5 percent, and 5 percent would be obvious, both on a pinch test, on his evidence, and, from the evidence of Dr Crosby and Dr Colantonio, that there would be other obvious signs of dehydration. It is Dr Colantonio's evidence that there are many causes of dehydration, not just the withholding of water. 14. Dr Crosby relied upon his taking of a blood sample and having it sent off for an IDEXX Laboratory reading, having undertaken an i-stat reading himself. Dr Biffin was of the opinion that if his theory was correct, that IDEXX report would be subject to substantial criticism because some of the readings, particularly in relation to sodium, were not what he would have expected them to have been. That makes the reliance placed by Dr Crosby, without other evidence upon the IDEXX reading, as being somewhat troubling. 15. Dr Biffin was advised of the 12 prior readings for the subject horse, which ranged between 27 and 32, eight of which were less than 30 and four of which were greater than 30, and it would seem to be common ground there was a mean of about 30 in respect of this. Page 4

5 16. One of the other difficulties with Dr Biffin's evidence was that he was of the opinion that the 5 kilogram daily feed given to the horse comprised Koola Komplete, whereas in fact he said if it was given 2.5 kilograms of that and 2.5 kilograms of Prides Stamina, it would significantly differ the electrolyte levels, although, he did say that as a result of his knowledge the other substance, Prides Stamina, did have electrolytes in it and it could be that the difference was not significant. But regardless of that, there would be a difference in the electrolyte levels by the feed actually given to this horse as compared to that which Dr Biffin analysed. 17. It is also to be noted that the electrolyte levels will change with a change of diet. Just on that aspect of diet, it is noted that the appellant's evidence is that when he took over the horse, the previous owner advised him of certain issues about the horse with sweating and the like, as a result of which he determined that a high electrolyte diet such as that which he did administer was given. 18. The challenges to Dr Biffin's evidence therefore are, again to revisit them: the reliance upon the fact it was 100 percent of Koola Komplete when that was not the diet; he was not aware of the other products given; he did not know the amounts given, namely, he made assumptions that one scoop of the various products was given, but had no evidence to support that; the challenge he made to the IDEXX readings was not consistent with the diet he was told; and the need for dehydration to come into operation would require at least 5 percent of dehydration, which would noticeably affect performance, and noticeably be present on a pinch test and other markers. In addition Dr Crosby, who was the vet who took the particular blood sample on a pre-race basis, although he said because he was busy, did not take particular notice of the horse and carried out no examination of it for the stewards before it raced and gave no evidence of any observation of dehydration in the horse when he took the blood. 19. It is also noted, in fairness to the appellant, that immediately after the race, having received a negative report from the driver, that he spoke to Dr Crosby about the poor performance of the horse and what might be done about it and essentially Dr Crosby did not take any action in respect of that. It is also noted in fairness that as a result of the reasonably quick notification on the following Tuesday by the stewards that an elevated reading had taken place that the appellant immediately got in touch with Dr Crosby, as a result of which Dr Crosby came to be involved more directly in relation to the appellant's case. 20. Dr Crosby has provided a report. He is a Bachelor of Veterinary Science and he collected blood from the horse on 22 September, bearing in mind the pre-race sample was 13 September. He took IDEXX readings. They are in evidence. They show, critically, an elevated TCO2 of 40 on the IDEXX and a more elevated sodium level and sodium is a key one as well as chloride Page 5

6 that was confirmed in respect of the IDEXX laboratory's subsequent tests. Critically, it showed sodium at less than the reference range; chloride at the bottom of the reference range and bicarbonate at 37, above the reference range. 21. He asked the appellant to replicate the conditions of the horse pre-race. The difficulty is that there is no evidence of precisely what was done, and Dr Crosby did not interrogate the appellant in respect of those matters. Suffice it to say, it was the appellant's advice to the stewards, and repeated, that he did everything the same. The difficulty was that it was not everything the same. For example, the horse was not taken to the racetrack and placed for five hours in the subject stall, as far as the Tribunal understands the evidence; there was a withholding of water for five hours and the horse was worked the same way and given the same feed and supplements. 22. As a result of all these tests that he carried out on this occasion, he formed the following opinion: that "this horse is suffering from a condition called hypochloremic alkalosis as a result of Mr Reynolds feeding inappropriate electrolytes. This condition was exacerbated by the withholding of water between 4 and 5 hours in hot conditions on race day resulting in dehydration, causing the horse to return an elevated TCO2." 23. Again, it is not necessary to closely analyse Dr Crosby's carefully given evidence in respect of what was going on inside the horse in respect of its various cells and the production of chloride, potassium, sodium and the like, and how the hypochloremic alkalosis can potentially create high levels of bicarbonate, particularly if the chloride level is low, then the bicarbonate level will be high. And interestingly he noted that the chloride level was said to be low, although it was at the reference range, according to IDEXX. And, of course, the bicarbonate at 37 was high. 24. He referred to hypochloremic alkalosis causing a horse to perform badly and to blow up, and it is a loss of performance and blowing up because the bicarbonate levels are elevated and therefore the horse needs to blow out carbon dioxide to balance those levels. Also, he said that if the horse had been given a "milkshake", he would expect the sodium levels to be higher. That seems to be unchallenged and indicates that if Mr Reynolds had given the horse a "milkshake" before Dr Crosby took the sample, that he would expect the sodium to be higher. 25. It is important to note that he did not know precisely what was being fed to this horse. He did look at a label when he was present to take the sample. He could not remember what that label was and merely noted that it was heavy in salt. He was not aware of the supplements or feeds. He has formed his opinion from the blood readings that he saw. He was not aware Page 6

7 of any challenge to the IDEXX readings such as that that was advanced by Dr Biffin. He acknowledged that he undertook the testing without controls but had expected that the appellant would have carried out the same prerace routine and therefore operated on that basis that he did. In addition, he could not remember if the horse had sweated when he took blood. 26. Challenges to Dr Crosby and his evidence were those that go to his lack of knowledge of the supplementations and feeds that the horse was subject to, what other products it was subject to and, critically, the addition of various products as a result of those matters taking place. In addition, contrary to the opinion expressed, there was no evidence of the dehydration to which he was concerned, only a knowledge that there would be exacerbation by the withholding of water. 27. Some other external factors that came out of the evidence are was there dehydration or was there not? Nobody has given evidence of dehydration. At best, it is an assumption. The symptoms of dehydration at the level Dr Biffin referred to of 5 percent would have been patently obvious, as the evidence establishes, both by a pinch test and other obvious markers. No witness has given evidence of observing any of those things. Dr Crosby was a regulatory vet, he had broad responsibilities, he did not make any observation of dehydration of the horse at the time he took the sample, acknowledging, as the Tribunal has said, he was not being particularly observant of matters such as that. The evidence, which is unchallenged, of the appellant is that the horse did not touch the water that he put out for it in the holding stall that it was in at the races; it was there for some 4 to 5 hours not observed; that it would not, when given molasses in the water in an attempt to make it drink, consume water. To the stewards, he said this: "I have gone and retrieved the horse. He hadn't drank an ounce of water at that stage. I did add molasses to it then, and even then he didn't drink water, which she has never drank water for me on track." He referred to bore water at the races and not town water as at the stable and his concerns that maybe it was a bit dehydrated. 28. The only corroborative factor, if any, about dehydration is one of the indicia of dehydration of poor performance. Did the horse actually perform poorly? It was the opinion of its driver that it did and was not consistent in performance as it has been when he drove it two races earlier when it won. The horse also won, it is noted, at its second outing under this appellant when the appellant's son drove the horse. But the times that the horse ran, despite the appellant's attempts in his evidence today to downplay the importance of time, were, in respect of the prior race, as compared to the subject race, sufficiently identical to eliminate poor performance. The Tribunal notes that the driver was not called to give evidence and it was said that both the appellant and the driver thought it was very disappointing, that Page 7

8 it had no zip, it gave nothing, it's just chased the others around and was very flat. As to whether they are indicia of poor performance when the horse is running a virtually equivalent time is one thing. The Tribunal accepts Mr Reynold's evidence that times can vary despite a horse racing well on one day when a simple measure of a winning time is concerned. By reason of the numerous factors the way a race is run and its participants, races can be won from race to race by a particular horse at vastly different speeds, whether on a mile rate or otherwise. 29. But the Tribunal is not persuaded at all that the evidence it has is such that there was dehydration. Dehydration is a critical factor in this matter. It makes it clear in these findings that the aspects of performance, as it has just described, are not sufficient to elevate the evidence to a finding of dehydration. The Tribunal has already indicated its concerns with the assumptions that were required to be made by Drs Biffin and Crosby in respect of electrolytes and in particular by Dr Crosby on the diagnosis of hypochloremic alkalosis. The paucity of evidence available to them makes their conclusions weak. 30. There are two limbs to this case: elevated electrolytes and/or inappropriate electrolytes, about which the Tribunal has substantial difficulties in making a finding against Harness Racing and in favour of the appellant; and, secondly, its combination with dehydration, for the reasons just expressed. When each of those two factual matters falls away, the causes of elevated TCO2 by reason of those husbandry practices fall away. It leaves, therefore, unchallenged the evidence of Dr Colantonio that the horse was provided an alkalising agent within 12 hours of the pre-race test. 31. It is not necessary to further analyse the various research reports which the Tribunal has been given. None of those make any difference to the findings just made. 32. This is a severity appeal. It is, therefore, that the starting point for the breach must be based upon those factual findings. The penalty guidelines are not tramlines. The Tribunal does not repeat in this appeal its ad nauseam remarks about that, it will make its own decision on penalty, but will not ignore the guidelines, for the reasons it has expressed so often as to the aspect of certainty in appropriate and like cases they provide. That is not said to be, for future case purposes, a summary of either of those two principles. 33. The guidelines start at two years for this breach. When analysing these facts and prior cases of TCO2 with which this Tribunal has dealt, it sees no reason to have a different starting point. The issue raised in the proceedings is whether that should be by way of disqualification, suspension or otherwise. This Tribunal has expressed for a number of years in numerous cases its opinion, particularly post-2011 and the green light scandal, Page 8

9 particularly now in relation to the controversies raging through the three racing codes, that those who present horses to race with prohibited substances must, unless there is something quite exceptional, expect that the starting point will be a period of disqualification. 34. Having analysed the facts, having considered, and will return to the subjective factors of this appellant, the Tribunal sees no reason why its starting point should not be a disqualification. The issue is, allowing for a two-year disqualification, whether that should be imposed, or something more or something less. The Tribunal sees no facts here which would warrant it from commencing with a greater than two-year period of disqualification. No case is ever run-of-the-mill and this one certainly hasn't been but the Tribunal sees that there is nothing about the circumstances in which it has made the adverse finding that there is anything which in other places would be called aggravation. 35. What then of the subjective facts? 36. The first and key one, consistent indeed with the guidelines, is an admission of breach or, as the stewards would want to call it, a plea of guilty. This Tribunal has said and repeats that an immediate plea of guilty to the stewards and cooperation with them, coupled, if the matter goes on appeal, with an adherence to that admission and cooperation in the conduct of the appeal should entitle an appellant to a 25 percent discount. Here the appellant did not plead guilty before the stewards. They were required to make a finding of breach. But it is in the circumstances that that occurred to which the Tribunal turns. At page 42 of the transcript at line 10 a plea of not guilty was entered. At line 45 on that same page, part of which time was taken up in reading Rule 190, the stewards retired. They returned. Transcript page 43, commencing at line 4, he was asked whether there was anything further. He said no. At line 15, the stewards retired to consider their finding. It can hardly be said that at that point in those few minutes that transpired the stewards were in any way inconvenienced in respect of their conduct of the inquiry, nor that there was any great adherence to a maintenance of guilt which would provide for them any difficulties. The transcript is silent as to how long the adjournment took for them to deliberate. In the absence of any evidence, there will be no conjecture. It is also noted that when he entered the plea of not guilty transcript again page 42 he said, "Sir, you can tell me if I'm going down the wrong line" and was indicating quite clearly that, consistent with the submissions made on his behalf although he gave no evidence about it that he was a little uncertain of what was to occur. Having analysed that evidence, the Tribunal gives particular weight to the fact that in this appeal he admitted the breach of the rule and it has proceeded on a severity only basis. He is to lose no leniency otherwise available to him because he has exercised his quite proper right to put in issue the circumstances around his presentation. This Tribunal was constituted as a sporting Tribunal to hear precisely those types Page 9

10 of matters which are of concern to an appellant. The Tribunal has had to make decisions, the respondent has had to react to the reports that have been tendered and to produce evidence to deal with it and, certainly, in other circumstances it might be said that there has been inconvenience occasioned. But the inconvenience has not been on the basis of a maintenance of innocence. Having analysed the short inconvenience occasioned to the stewards, the Tribunal's basic starting point would otherwise have been a 15 percent discount because of the admission before the Tribunal. Because of those circumstances before the stewards and the lack of inconvenience to them and his cooperation, the Tribunal on this occasion will extend to him a 20 percent discount. It is reinforced in that conclusion by other subjective factors to which it shall now turn. 37. The appellant has been a licensed trainer for 30 years and has no prior matters. That length of training history is substantial and to his credit. No prior matters is, consistent with, of course, the guidelines' starting point in any event, to his credit. 38. He is a hobby trainer. The impact upon him, therefore, is less than that which it would be for a full-time trainer. 39. There is impact upon him in respect of his capacity to work, and that is to be found in the fact that he is the superintendent of the Dubbo Showground. The Dubbo harness racing meetings take place at Dubbo Showground. Harness Racing has, very fairly to him, once the decision to disqualify was imposed, permitted him to exercise and continue to exercise his function so far as it relates to harness racing and he has maintained therefore his job. The financial impact upon him therefore is diminished. The Tribunal accepts his evidence that there has been inconvenience occasioned to him in the exercise of that function, but more so to his staff by reason of the fact that trainers are required to attend the office to pay fees and there are no doubt other matters that take place where he has to absent himself from the presence of trainers using his track under such matters as race days and the like. 40. The Tribunal accepts that he has engaged very strongly in those 30 years in the industry. The Tribunal has said those who assist the industry and assist others in it, which is on a voluntary basis, that when they themselves make a mistake, they are entitled to have that cooperation and assistance to others taken into account, and it shall be. He has introduced others to the code. He has promoted it. He has been a committee and board member of the local racing body. He has supported others in their endeavours to operate in this industry and he himself has taken horses to distant tracks to ensure that full fields or adequate fields are provided for. 41. He has two sons, one of whom does not live in the country, therefore his disadvantage is reduced; and his other son wishes, at his young age, to be Page 10

11 associated with the industry and, of course, any disqualification upon the appellant will have an impact upon that. 42. The Tribunal accepts that in looking to the future, as it does have to do in a civil disciplinary penalty, that he has taken steps to address his husbandry practices, both by the retention of Dr Major to provide him with advice, but that he will get advice. The Tribunal is satisfied in looking to the future that this breach will have a substantial effect upon him and provide a much reduced likelihood of repeated conduct. 43. The Tribunal also notes, when it comes to the totality of the matter, that the reading was towards the lower end at 37.5, although it is well, of course, above 36 for that first reading. 44. The Tribunal accepts he is a person of integrity. The character references speak well of him. 45. They are firstly by Mr John Wallcombe, he has known him for 41 years through family means, he has seen him grow up and develop and speaks of him as a well-respected son, father, husband, uncle, community member and accomplished sports person and has a clear understanding of his personal and social responsibilities. He assesses his conduct as totally out of character and does not reflect the personal values that he believes he displays. He also assesses the appellant as a person well aware of the seriousness of the matter and reflects upon, as the appellant has said, the embarrassment and shame he has brought upon himself. 46. The second is by Mr Peter Thomas, who has known him for 25 years in a business capacity, through livestock and also sport and harness racing. He says he is a man of great integrity, extremely dedicated to his family, work and the hobby of harness racing. He expresses an opinion limited to the brief facts that he does not believe the appellant would intentionally do anything that would jeopardise his name in any aspect of his life. Those, then, are the subjective facts. 47. It is interesting to note that the stewards, in determining a period of disqualification of 15 months, took 9 months off for the subjective factors, excluding any discount for the admission of breach. The Tribunal understands the compassion extended to the appellant by reason of that very long period of subjective discount. The Tribunal, with respect to the stewards, having analysed each of the facts to which it has made reference, does not consider that 9 months for those factors alone is an appropriate period of discount. Great weight is given to the length of time in the industry and his assistance to others. The Tribunal has assessed an approximate period of 5 months in respect of those subjective factors. Page 11

12 48. In addition, there is to be a discount of the 20 percent to which reference has been made, and whilst the mathematics are not precise, that equates to some 5 months, or slightly less, but the Tribunal will allow 5 months. 49. In those circumstances, the cumulative discounts are 10 months. The Tribunal, having assessed the subjective factors, remains of the opinion that they are not such as to enable it to move to a suspension and not a disqualification. 50. In those circumstances, the order of the Tribunal is that the appellant is disqualified for a period of 14 months. There was no stay granted in the matter, and that will apply from 25 September There being no application for a refund of the deposit, the Tribunal orders it be forfeited. Page 12