In the end it was the whistling that Auckland harness racing trainer Bunty Hughes didn't like.
The sterile environment and endless case law argument of the High Court at Auckland might have been foreign to the Pukekohe horseman but for someone used to reading the body language of his racehorses, it wasn't hard to interpret opposing lawyer Chris McVeigh's tune.
Things had not gone well these past two days. And when McVeigh, counsel for the Racing Integrity Unit and Harness Racing New Zealand started whistling merrily while packing up his volumes of evidence, Hughes pretty much figured he was flogging a dead horse.
But how could this have happened? It had all seemed so clearcut to Hughes. Surely anyone with even the slightest knowledge of the case could see how unfair it all was.
Hughes and his training partner John Green never dreamed when they lodged their judicial review last year that they would not retain the $75,000 stake that Delightful Christian won at the Harness Jewels last June.
It was common sense, surely. How could you be penalised for using a pre-race tonic that is internationally acknowledged not to contain a performance-enhancing substance?
Caco Iron Copper might improve a horse's coat or help it recover from the stress of a race, but it couldn't make it run faster.
It had been a legitimate therapeutic pick-up relied on by trainers in New Zealand for more than 30 years.
Common sense, sadly, appears to have no place in the High Court. And, while Justice Simon France won't deliver his decision for another few weeks, the body language of Hughes' counsel Michael Fisher told the story. There was no whistling coming from his corner.
The way Justice France was thinking became plain quite early in proceedings when he consistently drilled Fisher during his submissions, struggling to accept several key arguments.
. LEGITIMATE EXPECTATION
This was at the heart of the case. It had been a long standing policy, Fisher submitted, that the codes consulted with the New Zealand Equine Veterinary Association over withholding times and improvements in technology or changes in testing which might affect withholding times for legitimate therapeutic substances.
When former RIU boss Cameron George instigated sending samples to Hong Kong - where he hoped the super sensitive laboratory would detect suspected designer drugs like ITPP - the vets should have been alerted so they could review their withholding times.
By introducing a new test, HRNZ was effectively adding a new prohibited substance because it had never previously controlled the use of arsenic, the ingredient of Caco Iron Copper that was detected, nor had ever tested for it.
It was through regular liaison meetings, between key code representatives and the vets since 1994, that HRNZ's drug regime was able to work effectively and racing integrity was managed, Fisher said.
When heptaminol, an ingredient of kynoselen, was deemed to be a prohibited substance, the industry was notified and an amnesty period introduced so vets could adjust their withholding times.
Similarly, when Levamisol lost its exemption as an antiparasitic treatment, a stand down period was introduced so trainers could amend their practices and HRNZ could avoid a spate of damaging positives.
McVeigh countered that while HRNZ had met from time to time with the veterinary association, there was no proof, as opposed to an optimistic aspiration, that HRNZ has said anything that could give rise to a legitimate expectation to consult or liaise.
HRNZ had notified the industry first only twice in 20 years - and both heptaminol and Levamisol were products not previously considered prohibited.
Arsenic, on the other hand, had always been a prohibited substance.
McVeigh said the list of recommended withholding times was circulated as a guideline by vets among its members. It was not, and never had been, endorsed by HRNZ.
2. DELEGATION OF INTEGRITY ROLE and DISCRETION TO PROSECUTE
Fisher argued that under the Racing Act 2003, it was beyond the powers of HRNZ to delegate its powers, functions and duties on integrity matters to an independent body (RIU).
he power to lay informations, like the one seeking the disqualification of Delightful Christian, had been conferred on stipendiary stewards and racecourse inspectors, yet the operations manager of the RIU, Mike Godber, was neither.
The very formal, narrowly focussed, prosecutorial style of the RIU was not what the Act contemplated in relation to racing integrity, he said.
Rather than standing back and deciding what was best for the industry, the RIU was more intent on simply nailing people and getting as many convictions as it could.
The RIU was not bound, like HRNZ, to administer racing in a manner that was conducive to the economic wellbeing of people who derive their livelihoods from harness racing.
HRNZ should be following best industry practice and the objectives set out by the International Federation of Horseracing Authorities to encourage compliance through liaison and giving forewarnings - so there weren't constant breaches that undermined the integrity of the industry.
Fisher argued that the RIU failed to use its discretion when deciding to seek disqualification of Delightful Christian.
Discovery of documents revealed Godber gave his permission for charges to be laid by stipe Barry Kitto because he believed he had no choice given that Delightful Christian had raced with a prohibited substance in her system and in those circumstances RIU was obliged to seek her disqualification.
Fisher said that this approach was wrong in law because Godber did not exercise any discretion at all.
Godber failed to take into account that arsenic was not a performance enhancing substance and it only appeared on the prohibited list because of a 30-year-old case in Hong Kong when horses were given large doses to nobble them. No other jurisdictions bothered to test for arsenic.
The rights of other participants to a fair and even playing field were in no way compromised, Fisher said. No one was disadvantaged.
Fisher said RIU's documents gave no clue at all as to what Kitto thought at the time. The reasons he offered in his affidavit six months later were quite different from Godber's contemporary report to HRNZ and appeared to be a retrospective attempt to give the impression that despite Godber's report a discretion had been exercised by the RIU.
McVeigh refuted there was any unlawful delegation of powers to the RIU. The rules had been validly amended and complied in every respect with the Racing Act.
f the RIU had acted illegally, some 1500 prosecutions over the last two years could be rendered invalid or illegal.
HRNZ was not a signatory to the IFHA and was not bound by its policies just because New Zealand Thoroughbred Racing was and also contracted its integrity functions to the RIU.
cVeigh said Kitto had regard to all relevant matters and the only difference was that he now sought permission to charge from the operations manager of the RIU, not the chief executive of HRNZ.
3. B SAMPLE
The fact that Hong Kong is the only lab in the world accredited for testing arsenic in equine urine was another reason why the RIU should have exercised its discretion and not laid charges, Fisher said.
Testing the B, or reserve, sample was a critical scientific and forensic quality control, leading world authority Prof Tom Tobin said in an affidavit.
It was not sufficient for HRNZ to simply ‘‘approve'' labs in Australia who were not internationally accredited to test arsenic in horses, Fisher said.
When Hong Kong testing revealed a number of arsenic positives in Victorian-trained gallopers at the 2011 spring carnival, authorities there decided they could not lay any charges because the B samples could not be analysed at a similarly accredited lab. The ChemCentre laboratory in Perth was accredited only for testing of arsenic in human urine.
McVeigh argued, however, that under the swabbing regulations charges could be laid without a referee sample even being tested. The IFHA agreement that stipulated B sample testing must be done was not relevant to HRNZ.
If was not a defence to argue a reserve sample was not available - if there was not enough urine or it had been lost, the case could still go ahead.
he regulations stated only that the sample must be sent to a laboratory approved by HRNZ, and four had been approved in Australia.
HE ENTIRE industry was taken by surprise when two samples sent to Hong Kong tested positive to arsenic, Fisher said.
No conscious decision was ever made to control arsenic and no one here, including HRNZ's own veterinary advisor, Dr Andrew Grierson, knew the New Zealand laboratory had never tested for arsenic, had never been asked to test for it, nor had the ability do so.
Had the usual liaison occured, and vets been informed that samples were to be sent to Hong Kong, which tested for arsenic, they could have amended their withholding time for Caco Iron Copper and any other substances containing arsenic.
New Zealand Racing Laboratories Services general manager Geoff Beresford confirmed in an affidavit that he would have advised the vets where new testing equipment or technologies could impact on the withholding times.
And John McKenzie, former NZTR chief racecourse inspector, said in an affidavit that all code members who attended the liaison meetings, including Rennell, fully embraced the updating of the withholding list and the purpose it served in improving racing integrity.
Minutes of committee meetings in March, 2007 and August, 2008 showed the codes supported the concept of the list and its use by industry vets, not withstanding the fact that it was no defence to a breach of the rules just because a trainer had complied with them.
Fisher also pointed out that the minutes revealed fully candid dialogue, contrary to the position Rennell took in his affidavit where he claimed HRNZ did not engage in open dialogue with the NZEVA because they wanted to catch cheats, not alert them.
McKenzie said based on his experience and involvement with the liaison committee process, had the New Zealand lab acquired the ability to test for arsenic, that would have been disclosed to the vets and a lead-in time given before any action was taken.
N HIS SUMMING up. Fisher reminded the judge that the arsenic detected in Delightful Christian was not a performance-enhancing substance so the over-riding consideration of fair play was not compromised. Integrity would in no way have been undermined had the discretion not to charge been used.
Justice France left no doubt what he thought of that submission which he said ignored the key component of public confidence in racing being drug free, as referrred to by Justice Panckhurst in a benchmark case of 1999 featuring leading greyhound trainer John McInerney.
‘‘Public confidence is better served by knowing that if a horse returns a positive, it will be disqualified.
‘‘Horses must race on raceday free of prohibited substances, whether they have helped them or not.''
Moments later he reserved his decision, saying he hoped to have it out by Easter, or soon after.
The judge had barely left the courtroom when the whistling started.
McVeigh needed no formal statement. He and everyone else in the court knew what the decision would be.
WHO SAID WHAT ABOUT CACO IRON COPPER AND WHETHER THE CODE FAILED ITS TRAINERS?
BUNTY HUGHES Co-trainer of Delightful Christian
‘Caco Copper is a health remedy my vets have administered to my horses throughout my 30-year training career. The vets I use are highly respected in the industry and they have never encountered a positive test from the use of Caco Copper. I rely on them to get it right and to know what is going on.''
TONY HERLIHY Leading reinsman and trainer
‘The racing industry is very harsh when it comes to judging people caught racing horses with prohibited substances. Regardless of the circumstances, many people assume that the trainer concerned is a cheat. So his or her integrity will always be damaged to some extent in the eyes of many people in the industry.''
JOHN McKENZIE Former NZTR chief racing inspector
‘I do not accept that the codes did not approve and embrace NZEVA's withholding list and the purposes it served in improving racing integrity. I believe from my observations and discussions among and between members that all of them, including Mr Rennell, fully embraced the objects and purposes of the liaison committee consultative process...''
EDWARD RENNELL Chief executive Harness Racing New Zealand
‘I did not at any of these meetings, or at any other time, advise or indicate that HRNZ would consult or liaise with the NZEVA or industry participants before appointing laboratories to undertake testing... in relation to new testing or technologies ... agreeing to lead-in times ... or before sending samples overseas.''
GEOFF BERESFORD General manager of NZ Racing Laboratories Services
‘NZRLS does not disclose what substances it is capable of testing for, or what substances it does test for. Whilst I would have provided an update to the NZEVA where new testing equipment or technologies could impact on the NZEVA recommended withholding times, to date this has not occurred.''
PROF THOMAS TOBIN World authority on pharmacology, Kentucky
‘Arsenic and/or its metabolites could never enhance or advantage race performance... The threshold was not introduced to regulate any possible performance enhancing effect (there is none) but rather to enable prevention of its use in large amounts as a stopper... The process of performing the secondary or referee analysis is the basic rule of science.''
DR IVAN BRIDGE Chairman NZ Equine Health Association
‘‘I administered Caco Iron Copper to Delightful Christian at the request of Brian Hughes in accordance with the manufacturer's instructions knowing that such an administration would not carry a risk of a breach of the prohibited substances rules. I had been doing the same thing for 3o years for hundreds of clients and there had never been a positive to arsenic.''
MIKE GODBER General manager Racing Integrity Unit
‘There have been 38 samples sent to Hong Kong for analysis. If Caco Iron Copper was commonly being used on the day prior to races, I would have expected more than two samples to be positive for arsenic in particular having regard to Dr Grierson's view that its administration would elevate arsenic levels above the threshold and is eliminated over five days.''
DR ANDREW GRIERSON - Veterinary adviser for HRNZ
n June 19, only 17 days after Delightful Christian ran in the Harness Jewels, and before it was known that she had returned a positive, Dr Grierson assured the annual general meeting of the NZEVA that the use of Caco Iron Copper, according to the manufacturer's recommendations, would not pose an issue for raceday swabbing. HRNZ CEO Edward Rennell maintains Grierson was not speaking in any official capacity.
By Barry LICHTER (Courtesy of the SUNDAY-STAR TIMES)
The race in question: