Day At The Track

Nigel McGrath disqualified for 8 years

01:29 PM 06 Jul 2020 NZST
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Nigel McGrath,Harness racing
Nigel McGrath
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High-profile Canterbury harness racing trainer Nigel McGrath has been disqualified for 8 years for the attempted administration of a prohibited substance to a horse, refusing to supply information to a Racecourse Inspector and Obstructing a Racecourse Inspector during an investigation.

Full details below:

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

Information Numbers: A11684, A11685, A11686

In the matter of the New Zealand Rules of

Harness Racing

BETWEEN

RACING INTEGRITY UNIT

Informant

AND

NIGEL RAYMOND MCGRATH

Licensed Driver and Trainer

Respondent

Judicial Committee:

J Lovell-Smith - Chair

T Utikere - Member

Present:

Mr S Irving - Informant

Mr B H Dickey - Counsel for the Informant

Mr N R McGrath - Respondent

Mr P H B Hall QC - Counsel for the Respondent

RESERVED DECISION OF JUDICIAL COMMITTEE DATED 3 JULY 2020

[1] The Respondent, Nigel Raymond McGrath is a licensed Public Trainer and Open Driver under the Rules of New Zealand Harness Racing (HRNZ). He has been a Harness Trainer since 2000.

[2] The Respondent admitted three charges of offending deemed to be serious racing offences under Rule 505(1) of the New Zealand Rules of Harness Law. These charges are:

(a) Attempts to administer (A11684) Rule 1004(1).

On 13 March 2020 at Christchurch together with Robert George Burrows did attempt to administer to “Steel The Show” which was entered in Race 8 at the NZ Metropolitan Trotting Club’s meeting at Addington that evening, a prohibited substance by way of nasal gastric tube.

(b) Refuses to make a statement (A11685) Rule 1001(1)(i).

On 13 March 2020 at Christchurch refused to supply information by answering the questions of a Racecourse Investigator regarding the tubing equipment located in his possession and the attempted race day administration of the horse “Steel The Show.”

(c) Obstructing a Racecourse Investigator (A11686) Rule 1001(1)(j).

On 13 March 2020 at Christchurch obstructed a Racecourse Investigator by preventing him from seizing tubing equipment as evidence in the course of an investigation into a race day administration and ordering Racecourse Investigators to leave his property.

The Course of the Proceedings

[3] As recorded in the Committee’s Minute of 19 May 2020, the Respondent pleaded guilty to all three charges but disputes two matters in the Summary of Facts.

[4] The guilty pleas to all three charges were confirmed prior to commencement of the disputed facts hearing. By consent, charge 1 was amended to record the correct Rule as Rule 1004(1). (Rule 1001(1)(q) having been deleted on 25 November 2019) which states:

A person commits a breach of the rules who administers a prohibited substance to a horse which is taken, or is to be taken to a racecourse for the purpose of engaging in a race.

[5] Certain facts were agreed in accordance with Mr McGrath’s guilty pleas and a Statement of the Agreed facts was provided to the Committee and is set out in full in this decision.

[6] The general matters in dispute are as follows:

[7] The first two disputed matters relate to the attempting to administer breach (A11684).

[8] First, there is a dispute as to the nature of the substance that was attempted to be administered. The Informant identified the substance as likely to be a solution of chemicals for the purpose of alkalising the blood or increasing the levels of TCO2, which is a prohibited substance. The Respondent denies this and says that the substance is a product known as “Air Support” which can be purchased at equine stores.

[9] Secondly, there is a dispute as to the method of administration. The Informant alleges that the substance was attempted to be administered by a nasal gastric tube. The Respondent says that the substance was to be squirted through a tube on the horse’s tongue.

[10] The third dispute is in respect of the RIU’s allegation that the Respondent became aggressive and obstructive, after the horse had been recaptured. The Respondent denies that he was aggressive and obstructive.

[11] The evidence for the Informant consisted of video footage and transcript of the Informant’s inspectors’ attendance at the Respondent’s stable, transcripts of two interviews by the Informant of George Burrows, Licensed Stablehand, expert evidence from Dr A. Grierson, a veterinary surgeon, by AVL, regarding the likely type of drug administered and the method of administration. The Respondent, Mr McGrath gave evidence.

[12] At the conclusion of the evidence, submissions were made by Counsel including submissions as to penalty.

[13] The Committee reserved its decision at the conclusion of the hearing.

Agreed Facts

Parties

[1] The Respondent Nigel Raymond McGrath (McGrath) is a licensed Public Trainer and Open Driver under the Rules of New Zealand Harness Racing (HRNZ). He is 46 years old and has been a harness trainer since 2000.

[2] Robert George McKay Burrows (Burrows) is a Licensed Stablehand under the Rules of HRNZ. He is 54 years old and assists McGrath and has been employed in a number of different stables over many years. He is also employed as a barrier attendant by the Canterbury Jockey Club.

Background

[3] Over a period of time the Racing Integrity Unit (RIU) received confidential information indicating that the hours prior to the races McGrath would ‘tube’ horses in his shed between the stables and the main road.

[4] It is common knowledge that ‘Tubing’ is the process of inserting a rubber or plastic tube through a horse’s nose into its oesophagus for the purpose of administering a liquid substance. A funnel is usually attached to the tube and the liquid poured into the funnel, using gravity to force the liquid into the horse’s stomach.

The Facts

[5] On Friday 13 March 2020 RIU Investigators conducted surveillance of the shed next to Mr McGrath’s stables.

[6] At 5:40 pm Mr McGrath was observed leading the 3yo colt ‘Steel The Show’ from the covered yard at the end of the stable block into the shed, approximately three hours prior to its scheduled race start time.

[7] ‘Steel The Show’ was engaged in Race 8 at the NZ Metropolitan Trotting Club’s meeting at Addington Raceway at 8:48 pm.

[8] Minutes later RIU Investigator Simon Irving entered the property and went to the shed.

[9] Located in the shed were Mr McGrath and Mr Burrows, ‘Steel The Show’ and a backpack containing tubing gear including a coiled rubber hose, a plastic funnel, a twitch and an empty 800 ml plastic drink bottle containing residue.

[10] Mr McGrath immediately walked the horse from the shed and when confronted by another Investigator a short distance away, either the Respondent let the horse go or the horse got loose resulting in it running toward the stable complex.

[11] Mr McGrath admitted that the horse was ‘Steel The Show’ and that it was racing that evening.

[12] Mr McGrath refused to answer further questions regarding the tubing gear and the identity of his associate.

[13] Mr Burrows remained in the shed and when questioned about the activity admitted that they were about to ‘tube’ the horse ‘Steel The Show’ with what he called “air supply”.

[14] He acknowledged that this was in breach of the Rules of HRNZ and that it wasn’t the first time he had assisted in the procedure at the McGrath property.

[15] Once the horse was recaptured and contained in its yard Mr McGrath’s demeanour changed from being resigned and he became obstructive.

[16] He grabbed hold of the backpack held by Investigator Irving stating that it was his private property and initially would not release it even though he was repeatedly advised that it was being seized as part of an investigation into a racing matter.

[17] Attempts were made to seize the tubing kit as evidence, but Mr McGrath continued to object and requested that Investigators leave his property and come back later.

[18] Mr McGrath was repeatedly warned that Investigators were there lawfully under the Rules of HRNZ and his actions were making the matter much worse.

[19] His strong objections continued, and to avoid further confrontation and to comply with his request RIU staff allowed Mr McGrath to recover the backpack and its contents and prepared to leave the property.

[20] These interactions were recorded on RIU cell phones.

[21] Video containing images of the tubing kit was also recorded.

[22] Before Investigators left the property, Mr McGrath was advised that both his horses in Race 8 that evening would be scratched.

[23] Due to Mr McGrath’s actions the RIU vet on standby was prevented from attending the property to gather further evidence and conduct drug tests on both ‘Steel The Show’ and Mr McGrath’s other runner engaged that evening ‘Cloud Nine’.

[24] The Chairman of Stewards for the race meeting was advised of the incident and attempted to contact Mr McGrath by telephone (three times, two of which went straight to message so the Respondent may have only been aware of one call) and a text message requesting him a call regarding the scratching of his horses.

[25] Mr McGrath did not respond to the request.

[26] At approximately 3:00 pm the following day different RIU staff returned to the Mr McGrath stable to serve an Exclusion Notice on Mr McGrath and request he ‘hand over’ the tubing equipment from the previous day.

[27] Mr McGrath refused to provide the tubing equipment, stating that he would contact his lawyer and that the RIU staff could come back later.

[28] The tubing equipment has not been recovered and therefore could not be sent for analysis.

Respondent’s Statement
[29] The Respondent Mr McGrath refused to answer Investigators' questions on the day, despite being told that he had to respond, other than admitting that the horse he was found with was ‘Steel The Show’ and that it was racing that night.

(a) The following day Mr McGrath attempted to contact another Investigator, Kylie Williams. He did not participate in interviews with the investigations involved.

(b) He has subsequently provided a prepared, written statement to the RIU.

Mr McGrath – Breaches of the Rules of HRNZ

[30] Mr McGrath has committed the following offences against the HRNZ Rules:

(a) Attempting to administer a prohibited substance on a raceday.

(b) Refusing to supply information to a Racecourse Inspector.

(c) Obstructing a Racecourse Inspector during an investigation.

Conclusion

[31] Mr McGrath has a previous serious racing offence charge from 2004 when he was disqualified for three years (reduced to 18 months on appeal) for three counts of administering a prohibited substance.

[32] Mr McGrath also recently received a six-month suspension of his horseman’s licence after admitting a breach of the improper driving Rule, a result of Operation Inca.

Evidence for the RIU

[14] The video recordings of a visit to 502 Maddisons Road on 10 March 2020 made by Simon Irving, Racecourse Inspector were played. The transcript of the video recording was produced by consent. Present were Simon Irving, Nigel McGrath, George Burrows, Neil Grimstone and Oscar Westerlund.

[15] Mr Irving introduced himself to Mr McGrath and asked him what was “going on “and “what was in the bag?”

[16] George Burrows then hands the back pack to Mr Irving.

[17] Mr McGrath walks horse out of shed. When asked what horse is that, Mr McGrath said it was racing tonight and that it was ‘Steel the Show’. Mr Irving asked Mr McGrath “You going to give it a tube tonight?” Mr McGrath said no. Mr Irving followed Mr McGrath with the horse toward the stables when the horse ran off toward the stable area.

[18] Once the horse was safely tied up, Mr Irving looked inside the back pack and saw it had a twitch in it. He asked Mr McGrath to talk to him about it which he refused to do. Mr McGrath grabbed hold of the back pack again. Mr Irving said he was seizing the back pack as an exhibit, told him he was a racing inspector and that he must cooperate with them as it was part of an investigation. The request was repeated but Mr McGrath refused to hand over the back pack and asked Mr Irving and Mr Grimstone to leave his property and to give him the back pack. When Mr Grimstone told Mr McGrath they were taking the tube for analysis, Mr McGrath grabbed the rubber tube and walked off. Mr McGrath continued to argue and Mr Irving and Mr Grimstone let him take the contents of the back pack and walked away.

[19] The contents of the back pack included a wooden twitch, coiled rubber tube, plastic 800 ml bottle, plastic bottle lid, plastic funnel, 2 x bags.

[20] Mr McGrath indicated that he understood that both horses would be scratched that night.

[21] Transcript of Cell phone Interview with George Burrows 13 March 2020 in the Green Shed at the stables of Nigel McGrath of George Burrows by Neil Grimstone and Oscar Westerlund was produced as an Exhibit by consent. Mr Burrows did not give evidence.

[22] In the first interview, Mr Burrows told Mr Grimstone and Mr Westerlund that it was “stuff for its breathing” called ‘air supply’. When Mr Burrows asked if it was in accordance with the Rules, having said that he thought the horse was “Steel The Show” was running that night Mr Burrows answered, “probably not.”

[23] Mr Burrows said that he had been there to do “tubing” the horse “very few times.” He agreed he was tubing the horse, that it was not ideal and that it was breaching the Rules.

Transcript of Second Interview with George Burrows 17 March 2020

[24] The transcript of a second interview on 17 March 2020 with George Burrows, Neil Grimstone and Peter Lamb was produced as an Exhibit by consent.

[25] Mr Burrows wanted his first statement to be disregarded as he had been smoking weed and drinking and did not want to be there. He agreed he could tube horses but denied ever tubing a horse of Mr McGrath’s.

[26] In that second interview, Mr Burrows said he went to Mr McGrath’s premises the previous Friday about 5:00 pm to drop a couple of bridles off. Mr McGrath said he was a bit worried about his horse with a slight snotty nose and it was decided to give it some Air Support, a “herbal thing” to help its breathing. Mr Burrows said they went into the shed which is detached or remote because they did not want to be seen as it is against the Rules. He went under the trees so he could not be seen and Mr McGrath brought the horse around. Mr Burrows had got the tubing bag from Mr McGrath’s wash house in his home where it is kept. He said he did not know if the bag had a twitch in it but said it probably did with the Air Support and two boost tubes used to squirt it down with. Once he had the bag, Mr McGrath said to him “we’ll go to give it the Air Support.”

[27] Mr Burrows was asked where was the bottle of air supply. Mr Burrows said it was still in the shed “in the far corner where he had taken it.”

[28] Mr Burrows said the bottle was a “normal one.” He just “sucked it out and squirted it down” using the boost tube to squirt it on the horse’s tongue.

[29] He said there was no plan with the other horse as there wasn’t any more air supply.

[30] He agreed he could not be sure what the horse was given. He said he knew what Air Support smelt like as it has a strong eucalyptus smell and comes in a brown bottle. He did not see the label on the bottle which was used. He had administered the substance with the boost tube not the tubing gear in the bag.

[31] Transcript of Kylie Williams, Racing Investigator and Scott Wallis, Chief Stipendiary Steward (Greyhounds) Visit to Mr McGrath’s stable 14 March 2020.

[32] The following day, on 14 March 2020 Ms Williams and Mr Wallis visited Mr McGrath’s stable premises at 2:45 pm. On arrival, Ms Williams advised Mr McGrath that the reason they were there was to give him a Notice of Exclusion. She asked Mr McGrath to date it and she put the time on it at 2 56 pm.

[33] Mr McGrath then said he was going to give her a statement on the Rule breach. Ms Williams explained that that she could only serve the Notice on him and that they had only one question: “would he give them the things he was using last night, the back pack, the twitch, the funnel, the tube and the bottle.” Mr McGrath said he would give them the bottle but not the tube or the twitch.

[34] Mr McGrath was given a Notice of Exclusion from the Races but said he would not sign it. There was further discussion, but Ms Williams and Mr Wallis explained that they could only talk about the Exclusion Notice and ask for the items in the bag he had the previous day. Mr McGrath then admitted he had broken the 24 hour Rule but refused to hand over the bag or the items in it including the bottle. Ms Williams and Mr Wallis left at 3:02 pm.

Dr A Grierson

[35] Dr Grierson gave his evidence by AVL. He has worked as a racing veterinary surgeon for 20 years in both harness and thoroughbred racing. He was well versed in “tubing” and “milkshaking” from a veterinary point of view and physiologically, as it was not initially a prohibited substance or a prohibited procedure.

[36] The mechanics of tubing required a funnel, stomach tube and a twitch which could be used to restrain the horse. It required two people as it could be difficult to hold the horse, the mixture and the tube. It is easier to stomach tube a horse than squirt with a syringe as a horse is able to be stomach tubed with any amount of fluid.

[37] With regard to possible substances that could be administered within the time frame of 3 hours before a race as in this case, Dr Grierson identified EPO which is administered intravenously not via tubing but said the most common procedure was to tube alkalising agents in order to increase TCO2 levels. The TCO2 levels were set at a limit of 36.0, but under the Rule the level was limited by a guard band of 37.1. Tubing alkalising substances became a bad practice when horses were seen to perform better than their ability and is now banned internationally.

[38] Dr Grierson believed that the most likely substance to be administered via tubing was an alkalising agent and sodium bicarbonate was the most common.

[39] When asked in cross-examination about Air Support, Dr Grierson said he was familiar with the company but not personally familiar with that preparation. As no analysis had been undertaken by NZ Racing Laboratory Service on Air Support, he was unable to say if it was prohibited. If it was administered within one clear day then it was unlikely to be detected. He accepted that two people could be required to administer 60 mls of Air Support via a Boost tube on the tongue for a fractious horse.

[40] When asked if he could not rule out Air Support being administered to this horse, Dr Grierson said without a sample there was no way of being sure what it was. Dr Grierson said he had no idea if energy or stamina in horse was improved by Air Support. In response to a question from Mr Hall he agreed that there was insufficient evidence to say what the substance was.

Respondent’s Evidence

[41] Nigel McGrath read his evidential statement and answered questions in cross-examination from Counsel for the Informant and the Judicial Committee.

[42] Mr McGrath has been a licensed trainer for over 20 years and has trained over 570 winners with $6,000,000 in stakes, including a win in the New Zealand Derby in 2018.

[43] He owns his training establishment in Weedons.

[44] Although he pleaded guilty to charge 1, namely attempting to administer a prohibited substance by way of nasal gastric tube, he denies that it was the prohibited substance alleged by the Informant which was administered to “Steel The Show” on 13 March 2020 and that any substance was intended to be introduced by way of gastric tube. He did commit a breach of the Rules by introducing or attempting to introduce a substance known as “Air Support” in an oral syringe commonly known as a boost tube, a substance that was vet approved and was not intended to improve the speed, stamina or courage of the horse.

[45] The allegation that “he attempted to introduce an alkalinising agent via a nasal gastric tube in order to elevate the TCO2 levels of “Steel The Show” to improve his speed, stamina or courage is “not correct.”

[46] Late afternoon on Friday, 13 March 2020 Mr McGrath said he was “getting organised for the races at Addington that evening.” He had “Cloud Nine” and “Steel The Show” engaged in the same race.

[47] The horse “Steel The Show” has been marginally slower in recovering after fast work in the week leading up to 13 March blowing more than usual with phlegm and mucous in his nose.

[48] Mr McGrath did not consider this too serious but more likely a symptom arising as a result of the abnormally dusty week which was dry and warm. He had been treating this horse with “Air Support”, a herbal remedy he had purchased from Equine 2000. It is a registered horse product which is marketed on the HRNZ website.

[49] Mr McGrath said it had been approved by his veterinary surgeon who confirmed this in a letter to the Committee. According to Mr McGrath, it was a substance which contained no prohibited substances and was for the wellbeing of horses.

[50] Mr McGrath said that while he was preparing the two horses, George Burrows called in to drop off some mounting bridles he had agreed to deliver earlier. They talked about the evening ahead for the two horses and it was during his discussion Mr McGrath said he “stupidly decided” to give Steel The Show some Air Support as per the manufacturer’s instructions in order to assist his wellbeing that evening and his subsequent recovery after the race.”

[51] He accepted “fully that to do so was in breach of the one clear day Rule” and it was for that reason the free standing shed in a paddock behind the main block of stables was used because “we would not been seen.”

[52] Mr Burrows was going to assist in introducing “Air Support” because “Steel The Show” can be difficult to handle and is a wilful horse.

[53] Mr McGrath said his “motive was not financial or to improve the performance of the horse but rather to aid his post-race recovery.” Mr McGrath described a cupboard in the laundry of his house as “a dumping ground for storing stuff like supplements, empty syringes and tape.” A bag which has “Air Support” in it and equipment for salining of horses was also in this cupboard. Mr Burrows collected this bag from the cupboard and carried it into the shed.

[54] Mr McGrath denied attempting to administer an alkalising agent. He said his horses were often swabbed at race meeting and have never returned TCO2 levels at or above the level of 36.0 millimetres per litre in plasma C +/- point for error and usually the levels returned were well below the threshold.

[55] He emphasised that he would not put himself or his owners into such a situation. He acknowledged that he was disqualified in respect of three charges of administering a prohibited substance approximately 15 years ago. Mr McGrath said the substance he had administered at that time was “Propantheline” added to horse feed which he had bought from a chemist and cleared with his vet. He believed it did not breach the Rules.

[56] Mr McGrath maintained that the Air Support was administered by Mr Burrows via a large plastic tube, commonly known as a boost tube for the oral administration of a paste and liquid substance.

[57] Mr Burrows squirted the “Air Support” over the tongue of the horse. Neither a twitch nor a nasal gastric tube was used. There was no damp residue in any of the equipment apart from the boost tube. Mr McGrath said he found the boost tube together with the empty container of “Air Support” on the floor in the corner of the free standing shed where the administration had occurred, after the RIU staff had left. He picked up both items and put them inside his home. He produced both items as exhibits during the hearing.

[58] Mr McGrath explained that he “did not want to part with the gastric tube, twitch and bottle because they had not been used by him or Mr Burrows. He said he told Mr Irving who was asking about the tube and twitch in the bag “there’s no substance so I didn’t do it. Out please.”

[59] Mr McGrath said that when he led the horse out of the shed, he was “shocked to come face to face with a number of RIU employees.” He said he was overwhelmed at having been caught breaching the Rules, that is, the one clear day administration Rule and felt he had lost everything. His shock and bewilderment was such that he said he was not in the right state of mind at the time to discuss the matter with the RIU and I asked them to leave.” He did tell them to come back later and that he said, “I was also not prepared to part with any of my property and told them so.”

[60] Mr McGrath believes that those intense feelings were due to the “stress” he has felt under since 4 September 2018 when the police arrived with search warrants as part of Operation Inca, involving himself and the persons associated with the Harness Racing industry. The only criminal charge against him was dismissed. However, subsequently he was charged by the RIU and pleaded guilty to a charge of improper driving. The penalty imposed was a six-month suspension. The psychological and economic impact on him has continued to today.

[61] Mr McGrath accepts his conduct was obstructive due to his state of panic, shock and resignation and was in breach of the Rules. He regrets his behaviour because it inflamed the situation and resulted in the further charges to which he has pleaded guilty. He did expect the RIU veterinary surgeon would return and examine the horse which he was willing to have done but that did not happen.

[62] Mr McGrath contacted Kylie Williams the following morning as he respected her and preferred to make a statement to her. When she visited his stables later that day with Scott Wallis, she told Mr McGrath they had been directed not to take a statement from him.

[63] Mr McGrath said he has been licensed since he was 15 years old and never charged with offences relating to obstructing racecourse inspectors or refusing to make a statement.

[64] His motivation to breach the Rule was solely based on his concern for the horse’s wellbeing. He was not motivated by financial gain as he had no financial share in “Steel The Show” and he does not bet on harness racing horses. If the horse had won the race, he would have earned approximately $400 only.

[65] It was his belief that he breached the one day (24 hour) Rule by introducing or attempting to introduce a prohibited substance “Air Support” hence his guilty plea to charge 1.

[66] In his statement, Mr McGrath said he “took immediate steps to hand over his Public Trainers Licence and move all the horses due to race in the near future to other trainers to help maintain public confidence in the industry and do the right thing in the circumstances. I very much regret my foolhardy actions. My whole working life has been devoted to the racing and training of magnificent horses. It is a seven day a week commitment to demanding work. However, it is a lifestyle that I am passionate about. I do not want to leave the profession. I believe I have more to offer the industry in the future and I ask for a further chance to prove I am not the cheat as portrayed. I am passionate about horse welfare and wellbeing. I have volunteered my time and resources to the agency HERO which is a recently launched initiative to assist the rehousing of horses after they have finished their racing careers.”

[67] Mr McGrath produced an empty bottle of Air Support and a boost tube. Mr McGrath said the “Air Support” bottle and boost tube “lived” in the bag together with funnel, twitch and tube for salining.

[68] Counsel for the Informant, Mr Dickey asked Mr McGrath about the improper driving charge penalty hearing in January 2020. At the penalty hearing Mr McGrath had apologised and told the Judicial Committee he was committed to adhere to the Rules of Harness Racing. However, in his evidence at this hearing, Mr McGrath denied responsibility for the Rule breach he had conceded in January this year. Mr McGrath’s response was that he believed he was not guilty of race fixing.

[69] When asked by Mr Dickey about the 2004 charge for which he was disqualified for 18 months, Mr McGrath maintained the substance that was administered was an ulcer treatment used for horses.

[70] When Ms Williams and Mr Wallis visited his stables the following day, Mr McGrath denied he was abusive or aggressive. He said he never touched or threatened them.

[71] Mr McGrath’s explanation for telling both of them to get off the property and refusing to hand over the property the subject of this enquiry, as requested under the Rules was that he could not handle the situation and that he had asked them to come back later. He sought to deflect the responsibility for his response on a friend who was present and who he described as not helpful and if he had given Ms Williams and Mr Wallis the equipment that person “would have been even more abusive.”

[72] Mr McGrath agreed that he knew that Mr Ydgren was the Chief Steward and in charge of the race meeting. He was asked why he did not respond to Mr Ydgren’s phone call and text in respect of the harness racing meeting on 13 March 2020. He admitted he did not respond and said there was no urgency in the text and no suggestion that if he failed to do so he would be in breach of the Rules of Harness Racing.

Standard of Proof

[73] The standard of proof is on the balance of probabilities (Rule 1008A of Rules and Rule 31.1 of the Rules of Practice and Procedure for the Judicial Committee and Appeals Tribunal (JCA Rules).

Analysis

[74] On Friday, 13 March 2020 the horse “Steel The Show” trained by Mr McGrath was engaged in Race 8 at the NZ Metropolitan Trotting Club meeting at Addington Raceway at 8:48 pm on Friday, 13 March 2020. There is no issue that Mr McGrath took the horse “Steel The Show” into a green shed some distance away from his stables in order to conceal the administration of a prohibited substance or that Mr Burrows a licenced stable hand was assisting him. Mr Burrows accessed the shed from under some trees to conceal his movements having got the tubing back pack from Mr McGrath’s wash house inside his house, where the bag is kept.

[75] The tubing back pack belonging to Mr McGrath was located in the shed and contained tubing gear including a coiled rubber hose, a plastic funnel, a twitch and an empty 800ml plastic drink bottle containing residue. When Mr McGrath was surprised by the racing inspectors in the shed with Mr Burrows and the horse, he refused to answer further questions regarding the tubing gear and the identity of his associate.

[76] The transcript of the video footage of Mr Burrows’ first statement records that he was assisting Mr McGrath to tube the horse “Steel The Show” with Air Support to assist the horse’s breathing.

[77] When Mr Burrows asked if it was in accordance with the Rules, having said he thought the horse was “Steel the Show” which was running that night, Mr Burrows’ answer was “probably not’.

[78] Mr Burrows said he had been there to do “tubing” the horse “very few times.” He agreed that he was tubing the horse, that it was not ideal and that it was breaking the Rules.

[79] In his second statement, Mr Burrows clearly regretted making the earlier statement and sought to retract it on the basis he was under the influence of alcohol and cannabis.

[80] Mr Burrows said he did not know what the substance was in the bottle as he did not look at the label and could not be sure that what he administered to the horse was in fact Air Support. When asked where the bottle was as it was not in the bag he said it was in the far side of the shed. He claimed that the substance had been administered using the boost tube.

[81] Mr Burrows did not give evidence. We accept his account of the events of 13 March in his first interview when he was cooperating with the Investigators. Mr Burrows remained in the shed and in response to questioning admitted that they were about to “tube” the horse “Steel The Show” with what he called “Air Supply”. He acknowledged this was in breach of the Rules of HRNZ and that it was not the first time he had assisted in the procedure at Mr McGrath’s property.

[82] We do not accept Mr Burrows’ subsequent claim that he gave the first interview while under the influence of alcohol and Cannabis and that he wished to retract what he said. In our view, the second interview was self-serving and a deliberate attempt on his part to discredit his first interview. We are satisfied on the balance of probabilities that he was in the shed for the purpose of tubing the horse “Steel The Show” assisting Mr McGrath.

[83] Once the horse was caught and contained in its yard, Mr McGrath’s demeanour changed from being resigned and he became obstructive. He grabbed hold of the back pack held by the Investigators stating it was his private property and initially would not release it even though he was repeatedly advised that it was being seized as part of an investigation into a racing matter.

[84] Mr McGrath refused to hand over the bag as requested by the racing Investigators and would not allow the racing Investigators to take it away. He immediately walked the horse from the shed and when confronted by another Investigator, either he let it go or the horse got loose resulting in it running towards the stable complex.

[85] Although attempts were made by the Investigators to seize the tubing kit as evidence, Mr McGrath continued to object and requested that the Investigators leave his property and come back later.

[86] The Investigators warned Mr McGrath repeatedly that they were there lawfully under the Rules of HRNZ and that his actions were making the matter much worse. Despite these warnings, Mr McGrath continued to strongly object. To avoid further confrontation and to comply with his request, the Investigators allowed Mr McGrath to recover his back pack and its contents and prepared to leave the property.

[87] Ms Williams and Mr Wallis went to his stable the following day to serve an Exclusion Notice on Mr McGrath and request he hand over the tubing equipment from the previous day. Mr McGrath refused to provide the tubing equipment stating he would contact his lawyer and that the RIU could come back later. Mr McGrath’s explanation was that due to the abusive behaviour of a visitor to his stable, he was unable to comply with their instructions. We find his explanation unconvincing.

[88] As a direct result of Mr McGrath’s deliberately aggressive and obstructive conduct and refusal to comply with the instructions of the RIU Investigators who were lawfully at his stables, no analysis could be carried out of the tubing equipment and the substance which was to be administered.

[89] There is no issue the RIU veterinary surgeon on standby was also prevented from attending the stables to gather evidence and conduct tests on both “Steel The Show” and Mr McGrath’s other runner engaged that evening “Cloud Nine”.

[90] We accept Dr Grierson’s evidence and his conclusion that the most likely substance to be administered via tubing was an alkalising agent and that sodium bicarbonate was the most common. Although Dr Grierson acknowledged in cross examination in response to questions from Mr Hall QC, he could not rule out that the substance Air Support was being administered to the horse, he clearly stated that without a sample there was no way of being sure what it was.

[91] Dr Grierson was familiar with the manufacturer but not with their product Air Support. He was aware of its contents but as no analysis had been undertaken by the NZ Racing Laboratory Service there was insufficient evidence to say what the substance was.

[92] Properly qualified expert witnesses such as Dr Grierson are permitted to give opinion evidence on subjects within their area of expertise beyond the general knowledge of the Tribunal of fact provided a proper evidential foundation has been laid as in this case.

[93] We find that there is a clear inference to be drawn from all of the evidence that the most likely substance which to be administered via a nasal gastric tube was an alkalising agent.

[94] We do not accept either Mr McGrath’s or Mr Burrows’ evidence that the substance Air Support was to be squirted using a boost tube over the horse’s tongue.

[95] No boost tube or bottle of Air Support such as the one Mr McGrath produced at the hearing was visible. Although Mr McGrath produced a bottle of Air Support and a boost tube as part of his evidence at the hearing, we find his actions to be unconvincing and self-serving. Mr McGrath was given every opportunity to hand over the boost tube and the bottle of Air Support to the racing Investigators for analysis not only on 13 March but on the following day, 14 March.

[96] Mr McGrath’s explanation was that he was under considerable stress at the time as a result of previous investigation by the RIU and that on 14 March, the day after race day, he was not able to cooperate with the Investigators due to the conduct of another person who was present at his stable that day.

[97] In our view, Mr McGrath’s evidence was unconvincing and self serving. Mr McGrath has been a licenced trainer since 2000. He was given every opportunity to cooperate with the RIU investigation, but on being located in the green shed with Mr Burrows, “Steel The Show” and tubing equipment after the horse had been recaptured, he deliberately embarked on an aggressive and disruptive course of action to disrupt the RIU investigation to the extent that neither the horse nor the contents of the tubing bag could be tested. As a direct result, the substance could not be analysed and the horse could not be examined by a veterinary surgeon on behalf of the Informant. Mr McGrath has never surrendered to the Investigators the bottle of Air Support and boost tube he claimed to be the substance and method of administration.

[98] With regard to the transcripts of the two interviews with Mr Burrows and taking into account Mr Burrows did not give evidence, we find that in Mr Burrows’ first interview he was cooperative and he admitted that they were about to tube the horse “Steel The Show” with what he called “Air Supply.” He acknowledged that it was in breach of the Rules of HRNZ. Furthermore, it was not the first time he had assisted in the procedure at Mr McGrath’s property.

[99] Having considered the strength of all the evidence, we are compelled to reach the following conclusions. We find that there is strong and clear evidence the substance was an alkalising agent taking into account Dr Grierson’s evidence, Mr McGrath’s actions in concealing the horse, “Steel the Show”, the tubing bag, himself and Mr Burrows in the shed some distance from the stables on raceday, the contents of the back pack which contained tubing equipment including a funnel, gastric tubing, twitch and 800ml bottle, the involvement of Mr Burrows, and Mr McGrath’s intentional and deliberate behaviour which included his refusal to answer the Investigator’s questions, his obstructive and aggressive behaviour towards the Investigators including directing the Investigators to leave his property. As a direct result of his conduct, Mr McGrath prevented any analysis of either the substance or the tubing gear in Mr McGrath’s back pack and any veterinary examination of the horse.

[100] For these reasons, we are satisfied in respect of the disputed facts on the balance of probabilities that:

(a) The substance to be administered was a solution of chemicals for the purpose of alkalising the blood or increasing the levels of TCO2 which is a prohibited substance;

(b) The substance was attempted to be administered via a gastric tube;

(c) The Respondent became aggressive and obstructive when the horse had been recaptured.

Penalty

[101] The Appeals Tribunal in RIU v Habraken, 13 May 2019, at [15] stated that:

[15] The life blood of racing depends upon millions of dollars wagered in New Zealand. Loss of confidence of punters and the community in the integrity of the sport/industry inevitably carries grave risk to its wellbeing.

[102] With regard to the charge of attempted administration of prohibited substance Mr McGrath has accepted through his plea of guilty that the substance attempted to be administered was a prohibited one. Rule 1004(6) contains an absolute prohibition on administering any substance whatsoever to a horse on a race day.

[103] We agree with Counsel for the Informant’s submission that Mr McGrath’s motivation for doing so can only have been financial in order to enhance the horse’s performance.

[104] Mr McGrath involved Mr Burrows, another licenced holder, in the deliberate administration of a prohibited substance to a horse which was to race three hours later. In RIU v Lawson, 13 May 2019 at [42] an Appeals Tribunal noted that involving other licence holders so as to place them in jeopardy of facing charges was an aggravating feature.

[105] Dr Grierson’s expert opinion was that he believes the most likely substance to be administered via tubing was an alkalising agent which improves a horse’s performance and is now banned worldwide.

[106] Furthermore, such conduct has a significant impact on the racing industry’s reputation for high standards of animal welfare. The industry cannot maintain its social licence in order to continue to operate without maintaining high standards of animal welfare.

[107] We agree with Counsel for the Informant’s submission that in addition to the attempted administration of a prohibited substance, Mr McGrath’s conduct when dealing with racecourse Investigators warrants a condign response.

[108] Rule 1001 applies to actions involving some element of dishonesty, corruption, wilful neglect or breaches of duty or Rules, all serious racing offences.

[109] The Appeals Tribunal of the Judicial Conduct Authority said in RIU v Lawson at [25]:

Proceedings under the Rules are designed “not simply to punish the transgressor, but crucially are to protect the profession/public/industry and those who are to deal with the profession…The Harness and Thoroughbred racing “industry” is a profession where key participants are required to be licenced in order to practice in various ways within that sphere. Comprehensive rules of practice. behaviour, procedure and the like are set down in extensive detail in the Rules which govern the codes and behaviour. As with most professions, a careful internal disciplinary and regulatory process is set up. Those who practice within the professions (whether law, accountancy, medicine, teaching, real estate, and the like) are subject to sanctions for breaches of standards of conduct or rules designed to protect members of the profession as well as the public. Such sanctions can be at the highest end include removal from a profession for serious breaches of professional rules and standards involving dishonest or immoral conduct. Such behaviour if unchecked may greatly harm the reputation of the profession and bring it into disrepute”-that is the public loses confidence in it.

[110] Mr McGrath knew that as a licenced trainer that the Rules of Harness Racing requires compliance with the horse Rules and cooperation with the RIU, the industry body charged with managing integrity issues. It is also important that all those in the industry are also deterred from acting in a similar way, contrary to the conditions of their licences and the Rules.

[111] The Appeals Authority stated at [25] that disqualification is frequently imposed:

Where the professional has acted dishonestly or unethically, or so far outside the standards required of him/her as to forfeit the privilege of working within the profession.

Aggravating Factors of the Offending

[112] There is no issue that the RIU Investigators who attended Mr McGrath’s stables on 13 March 2020 and were acting lawfully and reasonably and were entitled to take possession of the tubing gear Mr McGrath had concealed and to question Mr McGrath. Mr McGrath’s response was deliberately aggressive and obstructive culminating in him ordering the RIU Investigators off his property. We do not accept Mr McGrath’s evidence that it was not an outright refusal to cooperate, although it is correct that when he declined to be interviewed on 13 March 2020, he did say the twitch and nasal gastric tube had not been used.

[113] We reject Mr McGrath’s evidence that he was in no state to be questioned at that time. Given his conduct we do not accept that the RIU Investigators could have arranged for a swab of the horse which was caught when they were present and secured it its stable. His statement was given to the Informant before he was charged with any offence.

[114] Mr McGrath’s actions on 13 March 2020 and on the following day 14 March 2020 breached the Rules in ordering RIU Investigators off his property and refusing to supply information including the tubing equipment prevented the RIU Investigators obtaining the very evidence that resulted in the need for a disputed facts hearing. His deliberate actions prevented the RIU Investigators performing their functions and undermine the Rules and Licensing regime which ensure the integrity of the industry as a whole.

[115] We do not agree with Counsel for Mr McGrath’s submission that while conceding that the (attempted) administration was deliberate, the nature of the substance and the manner of administration falls at the lower end of the spectrum because the substance is not a drug, rather a multi-herbal remedy which Mr McGrath believed would assist the horse’s recovery and wellbeing after a hard race rather than providing an unfair advantage to the horse. Dr Grierson’s evidence was that the most likely substance to be administered via tubing was an alkalising agent and sodium bicarbonate was the most common. Mr Burrows’ confirmed that he was assisting Mr McGrath to “tube” the horse and that he knew it was breaching the Rules. He and Mr McGrath endeavoured to conceal their actions by taking the horse and tubing gear into a shed away from the stables. When discovered by the RIU Investigators, Mr McGrath refused to cooperate as required by the Rules in any way, including behaving aggressively and obstructing.

[116] Further, was Mr McGrath’s deliberate and intentional actions in withholding evidence that prevented the Investigators gathering the very same evidence which has resulted in the need for the disputed facts hearing. We regard this as a serious aggravating feature.

[117] In our view there are no mitigating factors relating to the offending.

Aggravating Factors relating to Mr McGrath

[118] Mr McGrath was suspended from driving for six months on 10 February 2020 having pleaded guilty an improper driving breach. While subject to the suspension from driving, he incurred the current breaches of the Rules as a licensed trainer.

[119] In 2004-2005, Mr McGrath was disqualified for 18 months following a breach in which two horses tested positive for Propantheline Bromide, a performance enhancing substance referred to colloquially as “Blue Magic.”

[120] The current breaches of the Rules occurred within a few months of the six month suspension from driving for an improper driving breach.

Mitigating Factors relating to Mr McGrath

[121] Counsel for Mr McGrath, submitted that Mr McGrath’s reaction to what occurred is significant, in that he indicated within a short time he would plead guilty to a breach of the 24 hour Rule and on 18 March 2020 provided a statement to the RIU which included advice that he intended to hand in his public training licence as a demonstration of his remorse and acceptance of the consequences of his actions on Friday, 13 March 2020.

[122] Mr McGrath’s reaction was “off the cuff” and later very much regretted. He offered to make a statement and offered to be interviewed the following day but the RIU decided not to engage with him.

[123] The attempted administration was not an attempt to gain an unfair advantage over other competitors and the horse was scratched so no actual loss was incurred by the punters although the owners lost the opportunity to a share of the prize money.

[124] Mr McGrath’s Counsel submitted a 25% discount was appropriate for his plea of guilty and the attempted administration charge is clearly a less serious charge than an administration charge.

[125] Mr McGrath is saddened and apologetic. He had admitted the charges and realises that the consequences of suspension or disqualification of his licence would put his family’s investment in horses and the training facility in jeopardy because he could not meet his business commitments without a training licence. He is passionate about horses and the sport which he loves. Since he became a Licensed Public Trainer, he has had many quality horses and a loyal and long standing customer base. He has trained winners in many of New Zealand’s feature races including the Great Northern Oaks and Trotting Derby, the NZ Derby Multiple Sires Stakes and Yearling Sales finals, the Young Guns, Breakers Stakes, NZ Jewels and over 20 Country Cups in the South Island.

[126] With no other qualification or work experience he would find it difficult to obtain alternative employment. The complete loss of his business and income would be out of all proportion to the gravity of the offending, if a disqualification was imposed.

[127] The Judicial Control Authority Penalty Guidelines suggest a three-year disqualification starting point is appropriate for a second offence of administering but that the starting point should be lowered significantly if the earlier offending was 15 years previously as in this case.

Submissions as to Penalty

[128] Counsel for the Informant seeks a disqualification of up to 10 years of Mr McGrath’s trainer’s licence if the substance administered to the horse “Steel The Show” was an alkalising agent and was introduced by way of a gastric nasal tube.

[129] Counsel for the Respondent submits that the cases cited by the Informant namely RIU v Morgenrood  (RIU v B Morgenrood decision dated 9 June 2020) and the RWWA case do not involve raceday administration. The RWWA case is under appeal and the Morgenrood case was described by the Judicial Committee as “difficult to find any similar offending by a licenced rider.”

Conclusion

[130] The starting point for these three offences, before allowance is made for mitigating factors, must be sufficient to reflect the gravity of the offending, the interests of the industry, profession of harness racing as a whole and the need for deterrence, both specific and general.

[131] This is a case where clearly the interests of the professional code/industry participants and the sport outweigh mitigating factors in deciding that disqualification is necessary. The evidence is largely uncontradicted and overwhelming. Mr McGrath attempted to administer an alkalising agent via a gastric tube to “Steel the Show” on raceday. In order to do this, he involved another licence holder, Mr Burrows. When surprised by the Investigators, Mr McGrath’s intentional aggressive and obstructive conduct undermined the Rules and the licensing regime and rendered the RIU investigation redundant in that they were unable to perform their core functions. If the industry cannot be effectively regulated, there are serious consequences of public confidence in the sport. In our view, disqualification is the appropriate penalty.

[132] We agree with Counsel for the Informant’s submission that licence holders must not be given the impression that they can withhold or destroy evidence, so that they can argue the facts and receive a lesser penalty than otherwise would be appropriate.

[133] Taking into account the submissions of Counsel for the Informant and Counsel for Mr McGrath, we adopt a global starting point of 10 years disqualification, which includes a small uplift for previous breaches of the Rules in 2004 and for further offending against the Rules while subject to a suspension as a driver imposed on 10 February 2020.

[134] We take into account the fact Mr McGrath is suffering from severe stress and is genuinely remorseful. There will be very significant financial and personal implications for Mr McGrath, as a direct result of any suspension or disqualification. We also take into account his admission of the charges.

[135] However, in respect of the mitigating factor we allow only a small discount given the overwhelming and largely uncontradicted evidence that Mr McGrath’s intention was to undermine the Rules and the licensing regime and render the RIU’s investigation redundant in that they were unable to perform their core functions maintaining the integrity of sport/industry and the publics confidence in it.

[136] Taking into account all mitigating factors, we order that Mr McGrath be disqualified for a period of 8 years concurrently, in respect of the three charges.

RIU Costs

[137] The RIU is entitled to costs. The Informant’s submissions as to costs are directed to be filed within 10 days and the Respondent’s submission in response are to be filed within 10 days of receipt of the Informant’s submissions.

JCA Costs

[138] JCA costs are sought and will be provided to Counsel within 10 days from date of this decision.

J Lovell-Smith

CHAIR 

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