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On 6 September 2018, the Harness Racing Victoria (HRV) Racing Appeals and Disciplinary (RAD) Board considered a charge issued by HRV Stewards under Australian Harness Racing Rule (AHRR) 190(1) against licensed trainer-driver Courtney Slater. AHRR 190(1) reads as follows: A horse shall be presented for a race free of prohibited substances. The charge under AHRR 190(1) related to a urine sample collected from the horse ‘Luvyacookie’ after it finished first in Race 3, the ‘Hillcroft Stables 3YO Pace’, at the Stawell harness racing meeting on 3 December 2018. Racing Analytical Services Limited (RASL) reported the analysis of that urine sample revealed arsenic in excess of the allowable threshold. Ms Slater was also charged with a breach of AHRR 190B(1) being that she failed to keep and maintain a log book as required. Ms Slater pleaded guilty to both charges before submissions on penalty were heard from the HRV Stewards and Ms Slater. In deciding an appropriate penalty, the HRV RAD Board considered Ms Slater’s guilty plea and cooperation throughout the investigation; Ms Slater’s excellent record in regard to prohibited substances; and the steps taken to prevent recurrence. Ms Slater was subsequently fined $3000, of which $2000 was suspended for a period of 12 months. The HRV RAD Board also ordered, under AHRR 195, that ‘Luvyacookie’ be disqualified from Race 3 at Stawell on 3 December 2017 and that the placings be amended accordingly. HRV RAD Board Panel: Alanna Duffy (Chair), Kerry Willcock   Harness Racing Victoria

Three more Canterbury racing figures have been charged as part of police investigations into harness racing's race-fixing scandal - both with supplying drugs, and one of the suspects with possession of a stun gun. That brings to 10 the number of horsepeople, all from Canterbury and working in the harness racing industry, who have been charged today for either supplying Class B drugs or race-fixing. All have come to police attention through Operation Inca, which started as a race-fixing investigation 18 months ago after information passed on by the Racing Integrity Unit. Today's arrests are the result of a further six search warrants conducted in Christchurch this morning, taking the total number of search warrants to 17. Phone surveillance has resulted in five horsepeople from Canterbury and a non-licence holder who works inside the racing industry in Manawatu being charged over being involved in or profitting from race fixing, which is listed in court documents as match fixing. But the recreational drug use or supply cases appear to have come about from information gathered in the course of the race-fixing investigation. Only one person, a 26-year-old male who appeared in a Christchurch court yesterday and was granted name suppression, has been charged with both race-fixing and drug supply offences. The story has rocked the racing industry to its core and looks set to get bigger as at least one other leading horseperson is named in court documents relating to the drug charges. Earlier today the Racing Integrity Unit banned all six trainers or drivers charged from attending race meetings, which now looks certain to happen to the two latest trainers charged. That will mean at least eight horsepeople who could have had horses racing at Addington this Friday night will not be able to attend and the RIU will then rule on whether that can participate in racing activities before their cases are heard. Harness racing bosses are dismayed by the rapidly-growing number of cases but have vowed their flagship national awards, for which some of those charged were in the running for honours, will still go ahead at Alexandra Park on September 29. With that night not seeing Alexandra Park hosting a race meeting, any industry member who has been charged would still be able to attend. Early today a race held at Nelson on June 8 was named in court as being part of the race-fixing investigation while the Herald understands a relatively minor race at Manawatu earlier in the year, is also under investigation. One of the industry's glamour events, the $200,000 New Zealand Derby at Addington in April, was investigated by police but seems unlikely to be at the centre of any race-fixing allegations. Michael Guerin

HARNESS Racing New South Wales (HRNSW) Stewards conducted an inquiry yesterday into reports received from the Australian Racing Forensic Laboratory (ARFL) that synephrine had been detected in post-race urine samples obtained from the following horses: FUTURE STRIDE- following its win in Race 5 at Penrith on Thursday 29 March 2018; BACKINTHEGAME- following its win in Race 4 at Penrith on Thursday 3 May 2018. The ‘B’ samples were confirmed by Racing Analytical Services Limited (RASL) in Victoria. Ms Wilkins appeared at the inquiry and provided evidence of her husbandry practices. Evidence including the Reports of Analysis were presented, as well as analytical reports in relation to teff grass hay obtained from Ms Wilkins’ stable and plant samples from the Menangle Park Training Centre. HRNSW Regulatory veterinarian, Dr Martin Wainscott also provided evidence to the inquiry. Ms Wilkins pleaded guilty to two (2) charges issued pursuant to Rule 190 (1), (2) & (4) for presenting FUTURE STRIDE and BACKINTHEGAME to race not free of a prohibited substance, being synephrine. In respect of those charges, Stewards recorded a conviction, however, did not impose a penalty on Ms Wilkins as they were satisfied that the detection of synephrine had resulted from environmental contamination.  In considering penalty Stewards were mindful of the following: Ms Wilkins’ first Prohibited Substance offences; Analytical reports; Environmental contamination; Ms Wilkins’ licence history and other personal subjective facts. Acting under the provisions of Rule 195, FUTURE STRIDE and BACKINTHEGAME were disqualified from the abovementioned races. Ms Wilkins was advised of her right to appeal this decision.   Harness Racing NSW (HRNSW) is the controlling body for harness racing in New South Wales with responsibility for commercial and regulatory management of the industry including 33 racing clubs across the State.  HRNSW is headed by a Board of Directors and is independent of Government. To arrange an interview or for further information please contact: MICHAEL PRENTICE | INTEGRITY MANAGER (02) 9722 6600 •  mprentice@hrnsw.com.au GRANT ADAMS | CHAIRMAN OF STEWARDS (02) 9722 6600 •  gadams@hrnsw.com.au

HARNESS Racing New South Wales (HRNSW) Stewards conducted an inquiry yesterday into a report received from the Australian Racing Forensic Laboratory (ARFL) that synephrine had been detected in post-race urine sample obtained from IDEAL LIFESTYLE following its win in Race 5 at Tabcorp Park Menangle on Tuesday 29 May, 2018. The ‘B’ sample was confirmed by Racing Analytical Services Limited (RASL) in Victoria. Mr Grimson appeared at the inquiry and provided evidence of his registered training establishment and husbandry practices. Evidence including the Reports of Analysis were presented, as well as analytical reports in relation to teff grass hay obtained from Mr Grimson’s stable and plant samples from the Menangle Park Training Centre. HRNSW Regulatory veterinarian, Dr Martin Wainscott also provided evidence to the inquiry. Mr Grimson pleaded guilty to a charge issued pursuant to Rule 190 (1), (2) & (4) for presenting IDEAL LIFESTYLE to race not free of a prohibited substance, being synephrine. In respect of that charge, Stewards recorded a conviction, however, did not impose a penalty on Mr Grimson as they were satisfied that the detection of synephrine had resulted from environmental contamination.  In considering penalty Stewards were mindful of the following: Mr Grimson’s first Prohibited Substance offence; Analytical reports; Environmental contamination; Mr Grimson’s licence history and other personal subjective facts. Acting under the provisions of Rule 195, IDEAL LIFESTYLE was disqualified from the abovementioned race. Mr Grimson was advised of his right to appeal this decision.     Harness Racing NSW (HRNSW) is the controlling body for harness racing in New South Wales with responsibility for commercial and regulatory management of the industry including 33 racing clubs across the State.  HRNSW is headed by a Board of Directors and is independent of Government. To arrange an interview or for further information please contact: MICHAEL PRENTICE | INTEGRITY MANAGER (02) 9722 6600 •  mprentice@hrnsw.com.au GRANT ADAMS | CHAIRMAN OF STEWARDS (02) 9722 6600 •  gadams@hrnsw.com.au

Harness racing trainer Scott Dickson has been fined $12,000 for racing a horse with TC02 in its system above the recommended levels. The horse in question is Magicol Moe who finished ninth at the Manawatu meeting on the 01 May 2018 and earned $140 for its effort. The horse has since been disqualified. Dickson advised the RIU during the investigation he had the ability to ‘tube’ a horse and that he did have tubing equipment on the property, however he had not done so for over a year when he had used it to administer electrolytes to other horses. He also advised that Magicol Moe was prone to ‘tying up’ and that it may get a handful of bicarbonate of soda in its feed and that his partner Lydia makes up the feeds. The tubing equipment was located in his gear room and examination revealed it had not been used for considerable time. Dickson has trained 822 starters during his career with 81 winners.   Full details below:   BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY UNDER THE RACING ACT 2003 IN THE MATTER of the Rules of Harness Racing BETWEEN RACING INTEGRITY UNIT Informant AND SG DICKSON Respondent Judicial Committee: Mr T Utikere (Chairman), Mrs N Moffatt (Member) Parties: Mr S Irving (for the RIU), Mr S Dickson (Respondent) RESERVED DECISION OF JUDICIAL COMMITTEE DATED 24 JULY 2018 FACTS [1] The Respondent, Mr SG Dickson (Licensed Public Trainer) faces a charge under the New Zealand Rules of Harness Racing. [2] The charge is detailed in Information A7159 and alleges a breach of the Prohibited Substance Rule: Rules 1004(1A), (2) and (3) of the New Zealand Rules of Harness Racing. [3] The relevant Rules are as follows: “Rule 1004  (1A) A horse shall be presented for a race free of prohibited substances. (2) A horse shall be presented for a race with a total carbon dioxide (TCO2) level at or below the level of 36.0 millimoles per litre in plasma. (3) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.” [4] The relevant Penalty Provision provides as follows: “Rule 1004(7) Every person who commits a breach of sub-Rule (2) or (3) shall be liable to: (a) a fine not exceeding $20,000.00; and/or (b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.” [5] The specific Information alleged: Information No A7159 THAT, on the 01st May 2018, Scott George DICKSON, the trainer of the horse MAGICAL MOE which had been taken to the Wairarapa Harness Racing Club for the purpose of engaging in a Race 5 - the Masterton Racing Club Mobile Pace - failed to present the said horse free of prohibited substances namely Bicarbonate or other alkali substance as evidenced by a blood TCO2 level of 39.2mmol/L. This is in breach of the Prohibited Substance Rule, 1004 (1A) (2) & (3). PRELIMINARY MATTERS  [6] In a Minute (dated 8 July 2018), the Committee noted that it was in receipt of the Notice of Appointment, the Charge Rules and Penalty Provisions and an Authority to Charge Letter from the General Manager of the Racing Integrity Unit, Mr M Godber. It also detailed that following a hearing at Awapuni on 7 July, a guilty plea was entered by the respondent. There were some matters relating to Penalty that arose during the course of the Hearing and both parties were invited to provide further Penalty Submissions on matters identified in the Minute. We are in receipt of that further information, and as such, we are now in a position to issue a full decision. SUBMISSIONS [7] The RIU submitted the following agreed Summary of Facts: The Respondent Scott George DICKSON is a licensed trainer under the Rules of New Zealand Harness Racing (HRNZ). He is 39 years old and has been a harness trainer and driver since 1998. MAGICAL MOE is a four year old gelding, trained by Dickson and owned by Dickson and his partner, Licensed Thoroughbred trainer Lydia Pickford. MAGICAL MOE has now had 8 starts for 1 win and 0 placings earning stakes of $6,465. Dickson has trained the horse since 29 March 2018, having had three starts for him. MAGICAL MOE was correctly entered for and presented to race at the Wairarapa Harness Racing Club meeting at Manawatu Raceway on 01 May 2018. The horse was driven by Zach Butcher and finished 9th of 10 runners in Race 5 (4.26pm), the Masterton Racing Club Mobile Pace, winning a stake of $140. RIU veterinarian Ms Ellie Grieves took two TCO2 blood samples from MAGICAL MOE at 3.42pm (44 minutes prior to his race) in the presence of Racecourse Investigator Simon Irving and trainer’s representative Ms Pickford. The blood samples were recorded with the Sample ID number 47291. Ms Pickford does not contest the taking of the samples. This was the first time MAGICAL MOE had been TCO2 tested. On 04 May the New Zealand Racing Laboratory Services (NZRLS) issued a certificate detailing the sample had returned a TCO2 result of 39.2 mmol/L, exceeding the accepted level of 36.0 set by Harness Racing New Zealand. Dickson was interviewed at his property on 09 May. He stated that he and Pickford transported MAGICAL MOE with three of their other horses to the races in their own truck, arriving approximately 1.30pm, one hour prior to the first race. Neither he nor Pickford could provide any reason for MAGICAL MOE’S elevated level and stated that they have never knowingly administered to the horse any alkalizing agent by ‘tubing’ or any other method. Dickson advised he has the ability to ‘tube’ a horse and that he did have tubing equipment on the property, however he had not done so for over a year when he had used it to administer electrolytes to other horses. He also advised that MAGICAL MOE was prone to ‘tying up’ and that it may get a handful of bicarbonate of soda in its feed and that Lydia makes up the feeds. The tubing equipment was located in his gear room and examination revealed it had not been used for considerable time. Pickford advised that she may have given a small quantity of baking soda and ‘Neutra Syrup’ in MAGICAL MOE’S daily feed for ‘tying up’ but had since run out of the baking soda. Three feed supplement samples (including ‘Neutra Syrup’) were taken from the property, in addition to TCO2 samples from two other harness horses in work and forwarded to NZRLS for testing. None of the supplements contained alkalinising agents and the horse’s TCO2 samples returned ‘normal’ levels of 30.9 and 30.4. Dickson had ‘sacked’ MAGICAL MOE due to its poor performances and the horse had been transferred to Licensed Trainer Allen Pyers two days after the race. A TCO2 sample was taken from MAGICAL MOE at Pyers’ property where he was ‘spelling’ the following day. The result of this sample was 28.4. Dickson trained horses have previously been TCO2 tested on 17 occasions resulting in TCO2 levels in the ‘normal’ range between 29.0 and 32.6. Dickson has no previous charges for presenting a horse with an elevated TCO2 level or breaching the prohibited substance rule. [8] In response to questions from the Committee, Mr Irving confirmed that he was accompanied by fellow Investigator Mr Andy Cruickshank, and that it was Mr Cruickshank who observed the tubing equipment to be dusty and located at the rear of a shipping container. It was because of the state that the tubing equipment was in, and its location, that led Investigators to the view that it had not been used for some time. [9] He also confirmed that Ms Pickford was involved with feeding on the property and detailed the feed regime for all the standardbred horses. Upon inspection of those supplements, Investigators thought that some may contain alkalising agents so were sent for laboratory testing where they were found to not contain any alkalising agents. [10] While Ms Pickford had confirmed that she was charged with feeding both the standardbreds and thoroughbreds, the horses did not receive the same supplements, as their feeds were slightly different. Mr Dickson confirmed that this was due to the different preparation regimes required for each of the horses. [11] Mr Dickson confirmed that he accepted the agreed Summary and that he admitted the breach. He identified that he had purchased MAGICAL MOE from the South Island and that it had won a maiden race by 14 lengths. He believed that its recent performance indicated an underlying problem in the background, and that if he had known, he would have had some bloods taken to confirm this. He said that MAGICAL MOE used to get a handful of Baking Soda in his daily feed due to tying up issues, and that was standard practice with many trainers. He was adamant that the horse had not been administered it in any other form. His possible explanation was that the horse had returned such a high TCO2 level due to the fact that he had a major virus which caused excessive swelling in his legs in the days following the race and that the stresses of racing had “brought it all out”. [12] Mr Dickson also supplied the Committee with two written documents to support his contention that it was possible MAGICAL MOE was not well at the time. [13] The first was a letter from local trainer Mr Allen Pyers. He confirmed that after picking MAGICAL MOE up from Manawatu Raceway on 3 April, he had noticed some swelling in all four legs from the knee down to the hoof. Mr Pyers believed there was no obvious explanation for this, but assumed he had a virus. After consulting fellow trainer Doug Gale, Mr Pyers was satisfied that was the case. As the season was close to the end, he decided not to race MAGICAL MOE and start fresh next season. After one week Mr Pyers had noticed the swelling had gone down and the gelding had brightened up considerably. [14] The second document was from Mr Gale, which confirmed the nature of the exchange with Mr Pyers and concluded with “...the symptoms he described in my long experience as a public trainer were indicative of a serious illness” (Written Reference from Mr Doug Gale, 5 July 2018).  Mr Gale had also explained that if the horse had a virus, it would have led the horse to hold back fluids and result in the increased TCO2 levels. [15] Mr Dickson also believed MAGICAL MOE to be a bleeder and that due to his race performances this was highly likely; however, it was unfortunate that he had never had the horse scoped by a vet to confirm that was the case. [16] These were the only factors that he could identify to explain the high level as all his other horses had been tested and had been within the acceptable TCO2 range. [17] In response to questions from the Committee, he confirmed that his observations were not of any illness, but of a puffy leg from the stress of racing. He had decided not to get a vet to look at the horse as racing at Manawatu was three weeks apart, which meant the horse could be freshened up. He also confirmed that his stable gave baking soda to other runners that suffer from ‘tie up’, and that it was not standard practice to put baking soda in all feeds. [18] He did not have any formalised recording of the feed regime as Ms Pickford did most of the feeding, but that it also depended on what else what happening on the day. He advised that he along with another stable helper may at times feed the horses. He could not understand why the levels were so high when only a small amount of baking soda had been put into its feed. [19] Mr Dickson stated that there was no intent behind this breach for the purpose of racing performance as MAGICAL MOE had run an ‘awful’ race on 1 May. DECISION [20] As indicated in the Minute of the Judicial Committee dated 8 July 2018, as the charge has been admitted, we deem the charge to be proved. PENALTY SUBMISSIONS The RIU [21] For the RIU, Mr Irving filed the following written Penalty Submissions: The Respondent, 39 year old Scott George Dickson is a Licensed Public Trainer under the New Zealand Rules of Harness Racing. He has held a HRNZ drivers licence since 1996 and a trainer’s licence since 2002 (16 years) and currently trains from his property near Marton. HRNZ records detail that Mr Dickson has trained 822 starters during his career with 81 winners. Mr Dickson has admitted a breach of Rule 1004(1A) (3) & (4) for presenting his horse ‘Magical Moe’ to the races on 01.05.2018 with a TCO2 level of 39.2 mmol/L above the threshold of 36.0 mmol/L. The circumstances are detailed in the attached Summary of Facts which have been agreed. The penalties which may be imposed are detailed in the attached Charge Rule and Penalty Provisions Document. Penalty Submissions The RIU believes that an appropriate penalty for this breach is a $10,000 fine. It is acknowledged that the JCA Penalty Guidelines from 01 May 2015 detail a starting point for HRNZ breach of the TCO2 Rule ‘first offence’ is a one year disqualification and a fine of up to $10,000. In the Prohibited Substances Regulations of the Rules of Harness Racing TCO2 is a prohibited substance when detected in venous blood over the threshold of 36.0 mmol/L. A guard band of 0.9 mmol/L is in place giving an action level of greater than 37.0 mmol/L. The prescribed threshold was increased from 35.0 to 36.0 mmol/L on 09 October 2014. At the time of the increase the HRNZ Board made it clear that there was a “firm expectation” that it expects a “stiffer regime of penalties” for subsequent breaches of the new threshold and that in their opinion the current penalties were insufficient. In RIU v MP Jones (2015) counsel for the Informant Chris Lange advised “that with the increase in the TCO2 threshold, in future cases it will be seeking a significant increase in penalty imposed for a breach of the Prohibited Substance Rule. For a first breach of the Rule a short period of disqualification will be sought, coupled with a fine. For repeated breaches of the Rule, the RIU will be submitting lengthy periods of disqualification should be imposed.” In the same decision the Committee noted “The Informant submits that, with that increase in the TCO2 threshold, the RIU will be seeking “a significant increase” in penalties for breaches of the Rule. Mr Lange has asked this Committee to record in this decision the intended approach for future cases. The Committee is not prepared to do this. Rather, we must deal with the matter of penalty on the basis of the Rule as it existed at the date of the offence and on the basis of previous penalties under that Rule. It would not be appropriate for us to pre-empt the approach to be taken by future Judicial Committees dealing with the new Rule 1004 and penalties under it.” It is submitted that a period of disqualification in this case would be largely unmanageable and unenforceable given Mr Dickson’s partner is also a licensed trainer and they both train exclusively from their own training track and facilities. Rule 1303(1)(b) details that a disqualified person may not train, assist or be involved in any capacity with breaking or gaiting a horse; and Rule 1303(1)(f) – may not, without written consent of the Board, enter upon the stable area of any licensed person. Mr Dickson and Ms Pickford also own a dairy operation and manage a dry stock farm on their property with the stables adjacent to the dwelling, implement barns and milking shed. It is the RIU’s position that it would be impossible to enforce a disqualification under these circumstances and therefore submit that an appropriate penalty is therefore the maximum fine, in lieu of a disqualification. There have been no other results above the threshold since the increased level. The administration to a horse of alkalising agents such as sodium bicarbonate raises the TCO2 levels in blood. In a report from the HRNZ Chief Veterinarian Andrew Grierson (dated 04 June 2018) he states: To date the number of race day samples tested for TCO2 is over 30,000 with a mean of around 30.70 mmol/L TCO2 and a standard deviation of 1.7 mmol/L. Profuse sweating, high body temperatures, overtraining, normal feeds, confinement during transport, diurnal and seasonal variation, the age and sex, any metabolic alkalosis or respiratory acidosis have all been shown to elevate TCO2. However the action level of 37.0 mmol/L provides a wide safety margin of one in over two million for these variations. As the level of TCO2 increases past 37.0 mmol/L so does the chance of being an untreated event and 39.2 mmol/L being an untreated event is more than one in two billion. Elevated levels of TCO2 has the effect of inhibiting fatigue in a racehorse by delaying the onset of lactic acid and this is potentially performance enhancing although there is no peer reviewed scientific study to show it improves (or reduces at extreme levels) performance due to the fact there are too many variables. Mr Dickson stated that he is adamant that he did not administer any alkalinising agent to ‘Magical Moe’ and has no idea how the positive could have occurred. He did admit to being able to ‘tube’ a horse but had not done so for well over a year when he had administered electrolytes. Tubing equipment was located at the rear of his gear room however upon examination it had not been used for considerable time. Mr Dickson’s partner Lydia Pickford, a licensed thoroughbred trainer, is responsible for feeding all horses on their property. Ms Pickford stated she may have added a small quantity of Baking Soda to ‘Magical Moe’s’ feed to assist with him ‘tying up’ but had run out some time prior – confirmed by an empty 500gm container of Pams Baking Soda found in the feed room. Three other feed supplements fed to their horses were taken for analysis and all returned results negative to alkalinising agents. Nine days after the positive result (and a transfer of stable) ‘Magical Moe’ was tested while ‘spelling’ returning a TCO2 reading of 28.4mmol/L. Four other Dickson trained horses were subsequently tested returning levels of 30.9 and 30.4 (non raceday; the day Dickson was interviewed) and 31.1, 31.1, 30.2 (raceday). Mr Dickson does not bet anymore, does not have a TAB account and did not wager on his horse that day. ‘Magical Moe’ finished 9th of 10 runners and was 9/9 in the betting. An analysis of TAB betting records revealed no unusual bets associated with the horse or the race. ‘Magical Moe’ was placed 9th earning stakes of $140 and is required to be disqualified and placings amended. Previous Cases 16.01.2015 - RIU v MP Jones – 36.2mmol/L; second offence, $4500 fine 10.10.2014 - RIU v P & L Jones – 37.3mmol/L; $2500 fine 23.06.2014 – RIU v J Keast & H Westrum – 36.2mmol/L; second offence, six month suspension and $2000 fine 21.10.2013 – RIU v J Keast & H Westrum – 37.0mmol/L; $2500 fine All of these decisions were prior to the increase in the threshold level and the establishment of the JCA Penalty Guidelines in May 2015. Sentencing Principles The four principles of sentencing can be summarised briefly and the first three apply in this case: ● Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment. ● In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offences. ● A penalty should also reflect the disapproval of the JCA for the type of behaviour in question. ● The need to rehabilitate the offender should be taken into account. Mitigating Factors Mr Dickson has been fully cooperative throughout the investigation and pleaded guilty to the breach at the first opportunity. Mr Dickson has been training now for 16 plus years and has not had a previous breach of this rule or any prohibited substance rule. Prior to this breach his horses had been TCO2 tested on 17 occasions with results ranging in the ‘normal’ bracket between 29.0 – 32.6 mmol/L. Aggravating Factors In Grierson’s report he comments “The statistics for a horse to record a natural untreated high TCO2 level of 39.2 mmol/L is more than one in two billion. In other words there is a two billionth chance that the trainer Mr Scott Dickson is being wrongly accused of using an alkalising agent… In conclusion I can find no reason to explain a racehorse being presented to the races with a TCO2 level of 39.2 mmol/L besides that of an administration of an alkalising agent.” In the 2012 Appeals decision RIU v S it was stated “Where the culpability falls on the spectrum of seriousness is best determined by reference to the extent to which the elevated level is in excess of the statutory limit.” It is submitted that the level of 39.2 mmol/L is at the higher end of the scale, the fourth highest of 52 samples at or over the old prosecution level of 36.1 since 2001 (the year that the three highest levels were recorded). Costs The RIU are seeking no costs. Conclusion Given the previous cases, the aggravating and mitigating factors as listed and the overall circumstances considered in this case, I believe a $10,000 fine is an appropriate penalty. [22] In response to questions from the Committee, Mr Irving could not elaborate on the reasons why a suspension was imposed as opposed to a disqualification in RIU v Keast & Westrum (2014). He was also able to identify that the direction to licence holders warning them that tougher penalties for TCO2 breaches would follow, was contained in the written decision of RIU v Jones (2015). [23] Mr Irving was asked to comment on his submission that a period of disqualification would be difficult to manage and enforce. In response he said that this would be due to the fact that the respondent and his partner were both trainers who shared the property and had their own training facility on site. They did not utilise a track off premise and therefore it would be very difficult to surveil Mr Dickson given the proximity of the rest of his working farm. [24] With regard to Rule 1303(1)(f), Mr Irving was unsure as to the intent of the rule. He was not aware if that specific rule had been engaged previously but suggested that it could possibility relate to a situation of allowing a person to associate with someone who was a disqualified person, rather than the reverse. He reiterated the RIU’s position that a disqualification might under some circumstances be manageable, but from an RIU point of view with Mr Dickson it would be very difficult to enforce. [25] Mr Irving also sought to put his fine only penalty into comparison with the what he believed was the only other specified prohibited substance threshold; which was Cobalt. When looking at the penalties for Cobalt in more recent times he identified that there had not been any period of disqualification and that the Starting Point was a $8,000 fine for both codes. He believed there were some similarities between TCO2 and Cobalt in that they were both elements of natural products, and therefore he was unaware as to why the disparity in starting points exists. Mr Irving also sought clarification from the Committee as to whether there was any flexibility in the JCA Penalty Guidelines. He also conceded that there was an error in his Penalty Submissions as the maximum fine should be identified as $20,000. [26] When considering aggravating factors, and with specific reference to the Appeal of RIU v S, Mr Irving accepted that when one applies the culpability test identified in the Appeal decision, Mr Dickson’s culpability sits at the high end. This was supported by the reading being the highest TCO2 reading in 17 years. [27] The RIU also confirmed that a disqualification would cover all racing codes and overseas racing jurisdictions as well. With respect to Mr Dickson, if he was a disqualified person under HRNZ, he would have the same limitations for any thoroughbred racing activities. Mr Dickson [28] In making submissions on Penalty, Mr Dickson accepted that the rule had been in place for a long time. Looking back over the previous six to seven years, he said that most breaches had been dealt with by way of a fine. Specifically, that first offences resulted in a fine in the range of$2,000-$2,500. [29] He had no expectation that MAGIC MOE would run well or any differently on 1 May, and that it had run the same as it had the week before. He had no intent to improve the horse’s performance as opposed to other charges lately where the horses had won, were then required to be disqualified and had upset the TAB and the public as a result. He believed that was relevant when considering the level of fine. [30] When the Committee indicated that the cases Mr Dickson was referring to, were prior to the current higher Starting Point for TCO2 breaches being in place, he accepted that the current Starting Point was a guide only; and that Mr P Scaife had a scenario with a similar positive at Palmerston North in 2012 and was fined $2,000. He believed the same charges were relevant 10 years ago, so they were still relevant now. [31] Mr Dickson believed that his breach was minor in comparison to the ‘multiple positives’ in the Dunn, Townley and Burrows cases, which resulted in minimal fines. He also identified other single TCO2-offences had attracted a fine of $2,000 and double offences up to a fine of $4,500. [32] When invited to submit on his living circumstances and what a $10,000 fine that was submitted by the RIU might mean, he confirmed that he and Ms Pickford owned and trained their own horses, and they had put a lot of effort in and had spent a lot of money on them. They were regular Harness Club supporters, having sponsored three race nights at Manawatu in addition to sponsoring the Club. He found this breach very disappointing and he and Ms Pickford were just trying to follow their passion. [33] He also submitted written References from Messrs W Stapleton (Public Trainer), J Doody (Racing Administrator) and J Pickford (Rangitikei Sharemilker) to attest to his character. [34] As indicated at para 6 the Committee received further Penalty Submissions from both parties. The further submissions from the RIU stated: RIU further penalty submissions 1. As per the Minute of Judicial Committee dated 8 July 2018 the Informant makes the following additional submissions: 2. In relation to paragraphs [6] and [7] it remains the RIU position that a period of disqualification is practically unenforceable and the same belief applies to a period of suspension. 3. Both penalties are designed to prevent the person from training or assisting in any capacity in the training of a horse. 4. Mr Dickson is in effect an ‘owner / trainer’ in that he does not train horses for other owners and he does not drive horses for other trainers, nor does he enter in or drive his horses at workouts or trials like the majority of harness trainers in metro areas. 5. Practically if suspended or disqualified Mr Dickson could effectively continue to train his horses on his property without sanction unless the RIU were to ‘catch him in the act’. 6. Practically if disqualified Mr Dickson could also continue to assist Ms Pickford with her business of training thoroughbreds again undetected unless the RIU were to observe him doing so. 7. If he were not granted written consent of the board to enter onto the property of a licensed person per 1303(1)(f) he (or Ms Pickford) would effectively have to leave their family home. 8. It is believed that this current situation is unique in New Zealand whereby a harness and thoroughbred trainer reside together with independent licenses. 9. In relation to paragraph [8] the RIU confirms that it did confuse the JCA Guideline ‘Starting Point’ of up to $10,000 as a “maximum”. 10. The RIU resubmits the rationale of balancing a fine in lieu of disqualification that an appropriate starting point is somewhere between $15,000 and the maximum $20,000. 11. Allowing for a discount for Mr Dickson’s early admission and clean record and the fact that the offending is at the higher end of the TCO2 scale the RIU therefore submits a penalty of a $15,000 fine is appropriate. [35] In response, the position of Mr Dickson was: After extensively looking through all recent PROHIBITED SUBSTANCES cases in which most are 210 offenses, there is in NO way this case can be deemed 'worse'. 28/4/18- Mr Kevin Townley was 'fined' $11,000 for a 2nd PROHIBITED SUBSTANCE offence. 15/5/18-Mr DG Burrows was 'fined' $9000 for a 2nd PROHIBITED SUBSTANCE offense 01/06/18-Mr RJ Dunn and Mr JR Dunn were each 'fined' $3900 for MULTIPLE PROHIBITED SUBSTANCE offences (Starting point penalty guidelines for 2nd offences is a lot higher than a 1st offence TCO2). All of these horses won their respective races. MAGICAL MOE only beat 1 runner and finished a long margin from the winner indicating the high level certainly did not enhance his performance. MAGICAL MOE was a bleeder and clearly unwell. Affectively, a fine in the vicinity of $15000 to $20000 (in which the RIU are submitting) for a 1st OFFENCE is totally impractical and unfair when comparing with the cases mentioned above. This will dramatically impact our ability to justify training racehorses. Making my case comparable with all other cases, a fine of around $7000 would be appropriate. REASONS FOR PENALTY [36] The Committee has considered all of the submissions placed before it, and thanks both parties for providing additional submissions to address some of the issues the Committee wanted some clarity around. The revised position of the RIU is for a fine of $15,000, while Mr Dickson’s revised position is for a fine of $7,000. [37] It is clear that MAGICAL MOE returned a TCO2 level in excess of the threshold whilst racing at Manawatu Raceway on 1 May 2018. Mr Dickson maintains that he is unaware as to how the gelding returned such a level as the only alkalising agent that it may have from time to time was a handful of baking soda and ‘Nutra Syrup’. [38] Mr Dickson is a trainer with many years experience under his belt. Of concern to the Committee is that it appears there is no formalised feed regime in place for the horses on his property. This would be an important aspect of any licensed holders’ responsibilities, and particularly important when standardbred and thoroughbred horses are being trained from the single premises. [39] We were told initially that Ms Pickford was the only person to feed the horses, yet Mr Dickson confirmed that he and another person may at times take care of feeding duties, depending on the nature of the day. It is apparent that there is a fairly relaxed approach to feeding and further highlights the need for a more formalised regime in place as it is apparent that Ms Pickford was in fact not solely responsible for administering the horse’s feed. It is entirely possible that three different persons could be involved in the feeding of the horses at the premises on any one day. This is a form of negligence that we would not expect from a licensed trainer with the level of experience that Mr Dickson has. [40] The Committee initially had some reluctance with the position of the RIU with regard to their submission which suggested removing the consideration of a period of suspension or disqualification. However, after considering Mr Irving’s additional submissions, we accept that there would be some difficulty with a period of disqualification or suspension. [41] While the enforceability of sanctions, should not be a prime driver for a Judicial Committee, we accept that Mr Dickson’s exceptional circumstances to be somewhat difficult. Specifically that it is a unique situation to have standardbred and thoroughbred horses trained by partners with independent code licences, along with his ability to undertake his employment as a dairy farmer from those same premises. [42] To impose such a restriction would have significant limitations on his ability to earn an income from the farming role and in our view would be a disproportionate penalty. However, in removing disqualification from the penalty options in this case, we emphasise that such action should only occur in rare circumstances, which we believe there are in the matter currently before us. [43] Although we accept the position of the RIU, industry participants should, as other decisions have made clear, expect that TCO2 breaches above the threshold should in the normal course of events attract a period of disqualification. We make this point as we accept that potential penalties for TCO2 breaches have been signalled by industry administrators and in previous decisions, and we may infer that is why this breach is the first since the threshold was raised in October 2014. [44] We reject the suggestion that a starting point similar to that identified for a Cobalt Prohibited Substance breach. While the two substances may have some similarities, the difference is there is a specified starting point for a TCO2 breach. To disregard that would be an inappropriate exercise for this committee to undertake. [45] The JCA Penalty Guide identifies the starting point for this offence as a one year period of disqualification and a $10,000 fine. The disqualification and fine within the starting point are cumulative upon each other rather than being distinctly separate. As we have accepted that a period of disqualification is not appropriate, our task is to identify what our starting point would be. Our view is that the starting point has two limbs, and that the one year disqualification limb should on balance equate to its other limb: a $10,000 fine. [46] We agree with the RIU that as the level of TCO2 is high, so must Mr Dickson’s culpability. This leads the Committee to adopt an initial starting point of a $20,000 fine; the maximum fine possible under the Rules. [47] When we consider this is a presentation rather than administration offence, we adjust the starting point to one of $18,000. [48] While we understand the position Mr Dickson has taken in reference to previous breaches, we believe it is appropriate for us to reject that position as those cases relate to prohibited substances which are not specifically stated as requiring a distinct starting point, and pre-dates the increase in the TCO2 threshold (October 2014) and the JCA Penalty Guide (May 2015). [49] Previous decisions have also consistently indicated that in such circumstances where penalties were imposed under a different penalty regime or different starting point, they must be viewed in that context. Therefore, in the context of this charge, the cases he cites, give us very little assistance. [50] When examining the written statements from Messrs Pyers and Gale their recollection of the dates do not seem to synchronise as Mr Pyers eludes to the conversation occurring in early April, whilst Mr Gale’s recollection is of it occurring in early May. In any event, the position of Mr Dickson remains clear: that an illness was the reason behind MAGICAL MOE’s elevated TCO2 levels. [51] Mr Dickson took no steps to engage a vet to confirm this, which we would expect a responsible trainer to do. As such there is no evidence before us to indicate that a MAGICAL MOE had a serious illness, which was the reason behind the increased TCO2 level. This leads us to reject the suggestion that it was due to illness as science suggests otherwise. We also reject any notion that the high levels were a natural occurrence as Mr Grierson indicates that such an occurrence has a one in two billion chance. [52] The respondent has also inferred that MAGICAL MOE’s poor placing should also be taken into account. We do not consider the horse’s ninth placing to be a mitigating factor. An increased stake or dividend-bearing position would be an aggravating factor as the consequential disruption and disadvantage to connections and the betting public demand it to be. [53] In mitigation we have considered Mr Dickson’s admission of the breach and his record under this rule. The RIU also cite his co-operation during the investigation process. In not imposing a period of disqualification, we are also giving Mr Dickson a significant discount. Disqualification was a primary consideration for the Committee and the stipulated Starting Point urges it. [54] On balance we consider a reduction from our $18,000 fine starting point is appropriate to recognise these mitigating factors. PENALTY [55] Mr Dickson is fined $12,000. [56] There is also a requirement for MAGICAL MOE to be disqualified. The Committee has already ordered the mandatory disqualification in its Minute dated 8 July 2018. COSTS [57] The RIU do not seek any costs, and as this was primarily held on a raceday, there will be no costs in favour of the JCA. Dated at Wellington this 24th day of July 2018. Mr Tangi Utikere Chairman   Harnesslink Media

Background At the Harness Racing Victoria (HRV) Racing Appeals and Disciplinary (RAD) Board hearing on 21 February 2018, Mr Tardio pleaded not guilty to a charge issued under Australian Harness Racing Rule (AHRR) 190(1) for presenting the horse ‘Kissed Flush’ to race at Mildura on 4 April 2017, when not free of cobalt, a prohibited substance when present at a concentration of greater than 100 micrograms per litre in urine. Mr Tardio was found guilty and issued with an 18 month disqualification. The full HRV RAD Board media release can be found here. VCAT Hearing On 19 June 2018, Victorian Civil and Administrative Tribunal (VCAT) Senior Member Gerard Butcher adjourned the hearing to a later date due to Mr Tardio failing to pay the hearing fee on that date. Additionally, Mr Tardio had failed to file and serve any expert witness statement. VCAT Decision On 23 July 2018, VCAT Senior Member Butcher revoked the stay of proceedings issued on 19 March 2018, and dismissed the application for review lodged by Mr Tardio in respect of the decision of the HRV RAD Board on 21 February 2018, due to a failure by Mr Tardio to comply with a number of previous VCAT orders. Mr Tardio’s 18 month disqualification recommenced with immediate effect. The full written VCAT decision can be viewed here. Harness Racing Victoria

Harness racing trainer Kevin Townley has avoided disqualification but has been fined a further $15,000 for producing another horse to race when not free of a prohibited substance (Ketoprofen). The horse in question was Well Defined who won at the Timaru Harness Racing Club’s meeting held at Addington Raceway on 26 April 2018. This was Townley’s third breach of the same rule in less than three months. Full details below:   BEFORE A JUDICIAL COMMITTEE HELD AT CHRISTCHURCH IN THE MATTER of the New Zealand Rules of Harness Racing IN THE MATTER of Information No. A6425 BETWEEN Racing Integrity Unit KYLIE WILLIAMS Informant AND KEVIN DAVID TOWNLEY Public Trainer Respondent Judicial Committee: DM Jackson (Chair), RG McKenzie (Member) Rule Breach: 1004 (1A)(3)(4) RESERVED DECISION OF JUDICIAL COMMITTEE DATED 24 JULY 2018 1. Mr Townley admits a charge that he breached Rules 1004(1A)(3) & (4) by presenting WELL DEFINED at the Timaru Harness Racing Club’s meeting on 26 April 2018 with a prohibited substance in its system, namely Ketoprofen. Mr Townley admitted the breach at the first available opportunity and countersigned the information recording same and a penalty hearing in respect of this charge was scheduled for and heard by this Committee on 5 July 2018. 2. This is Mr Townley’s third breach of this rule in less than three months. The two previous breaches involved positive swabs for Ketoprofen taken from the same horse, WELL DEFINED, on 3 February 2018 and GEENA’S GIRL on 2 March 2018. Mr Townley was fined $7,000 by a Judicial Committee for the first breach and $11,000 by a different Judicial Committee for the second breach. That is a total of $18,000 in fines to date for ketoprofen breaches. 3. The rule provides: “1004 … (1A) A horse shall be presented for a race free of prohibited substances. … ... (3) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules. … (4) A breach of sub-rule (1A), (2), (3) or (3A) is committed regardless of the circumstances in which the TCO2 level or prohibited substance came to be present in or on the horse.” 4. Clause 5 of the Prohibited Substance Regulations provides that the therapeutic substance, Ketoprofen, is not prohibited when present at or below the mass concentration of 100mcg per litre in urine. 5. The consequences of a breach of the Rule are outlined in Rule 1004(7): “every person who commits a breach of sub-rule (2) or (3) shall be liable to: (a) a fine not exceeding $20,000.00 and/or (b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.” 6. The Rule also requires the mandatory disqualification of the horse pursuant to Rule 1004(8) and 1004D. The facts 7. The Summary of Facts presented by Mrs Williams records that the horse WELL DEFINED is owned by Mr Townley’s wife, Mrs M E Townley and is trained by Mr Townley. The horse was entered and presented to race by Mr Townley at the Timaru Harness Racing Club (at Addington) Meeting on 26 April 2018. It won the race it was entered in but the stake has not been paid out. 8. Following the race, the Stipendiary Stewards ordered that WELL DEFINED be post-race swabbed, which occurred. On 10 May 2018 the New Zealand Racing Laboratory reported Ketoprofen was detected in the sample taken. 9. Upon confirmation of the positive swab, Mrs Williams and the Manager of Stewards, Mr Nigel McIntyre, visited Mr Townley’s property and spoke with him. He advised that he took WELL DEFINED to the races in his own float and that the horse was one of two horses that he had raced that day. He could not offer an explanation for the presence of Ketoprofen in the urine sample taken from WELL DEFINED and could not advise when the horse was last treated with Ketoprofen. 10. The last bottle of “key injection” containing ketoprofen on the property was taken for testing by the Racing Integrity Unit on 16 March 2018. 11. A urine sample was taken from WELL DEFINED on 11 May 2018 with the laboratory reporting that sample as negative to Ketaprofen. 12. In accordance with his rights, Mr Townley asked that the reserve sample taken during the initial testing on race day be tested, which occurred in Sydney and which test confirmed the presence of Ketoprofen in the reserve sample. 13. Mr Townley has had 14 horses swabbed since the first positive swab with WELL DEFINED on 3 February 2018. Aside from the two subsequent further breaches, all other tests have been clear. 14. Mr Townley keeps a diary in which he enters treatments that have a withholding time and all of his drugs are kept in a safe. The safe is an initiative implemented after the first positive swab. Mr Townley now primarily uses a vet for pre-race day treatments that have a withholding time, although it seems that was not the case before the return of the earlier positive swabs when he administered treatments himself. 15. The Summary of Facts records that the source of the Ketoprofen cannot be accurately determined despite considerable enquiries. 16. Mr Townley has been training since 1986-87 initially in partnership with his father Mr D J Townley and then on his own from 1994/95 on to the present day and has trained over 460 winners in that time. He has held a licence in one form or another for over 50 years. 17. The Summary of Facts was largely accepted by Mr Townley although he informed the Committee that he did give Investigators an explanation for the presence of Ketoprofen in the urine sample, which was that he could not account for it because there was no record of it in his diary, which diary he has always kept, and further, because there was no Ketoprofen on the property (having been taken away on 16 March 2018). Mr Townley confirmed to the Committee that he had not treated the horse with Ketoprofen prior to the race. 18. Mr Townley openly conceded that he had used Ketoprofen in the past and that he had had bottles of Ketoprofen in his stables during the period of his two earlier swabs. However, the third positive swab had caused him to engage a vet, at considerable expense, to not only administer pre-race treatments, but also to advise him on the keeping of his stables, the use of treatments and the possible sources of Ketoprofen contamination. 19. Mr Townley was at pains to explain to the Committee that he had removed all possible contaminants, be they ointments, be they food, anything which he thought the Ketoprofen may have come into contact with or which by some process, created or transformed into Ketoprofen. Mr Townley emphasised that since he had involved a vet and disposed of these items he has had 7 horses swabbed, all of which have tested negative. He emphasised that this was a brief and isolated incident in the history of his stable for which he could offer no real explanation. Penalty Submissions 20. Mrs Williams presented written penalty submissions for which the Committee is grateful. Mrs Williams submitted that Mr Townley should be disqualified for a period of one (1) year or fined $18-20,000.00 or otherwise be penalised by way of a period of disqualification and fine. 21. Mrs Williams identified that the JCA guidelines suggest a starting point of $8,000.00 for a first offence of this kind and for a second offence a starting point of 2 years disqualification and a fine of up to $10,000.00. 22. Mrs Williams identified by reference to Mr Townley’s earlier fines of $7,000.00 and $11,000.00 that a fine on this occasion ought to be at least a fine of $18,000.00 (being the total of those two earlier fines). 23. Mrs Williams submitted that an aggravating factor here was the third positive swab in a two-month period and further, Mr Townley’s earlier breach in 2003 for a prohibited substance in Australia. 24. Mrs Williams referred the Committee to four decisions concerning breaches of this rule namely RIU v TW Mitchell (12 July 2012), RIU v R Brosnan (13 February 2018), RIU v C and A Edmonds (31 March 2016) and RIU v B Negus (20 March 2018). The Committee will discuss those decisions below. 25. Mrs Williams said that Mr Townley was to be given credit for the manner in which he had conducted himself during the enquiry, his admitting the breach at the first opportunity and otherwise being cooperative but the end result was that he had breached the rules for the third occasion and that that was unacceptable. Mrs Williams also sought the disqualification of WELL DEFINED under rule 1004(8) and costs of $1,250.00 for the testing of the reserve sample. 26. Mr Townley relied upon his explanation which the Committee has recorded above, and also brought two character witnesses with him, namely Mr Dean Hunter and Mr Bruce Dawson. 27. Mr Townley’s primary submission was that he ought not to be disqualified because it would be devastating to him not only because of the consequences (being at this age, the end of his training career), but also the personal pride and reputational damage which he will suffer. Mr Townley reiterated to the Committee that he was flabbergasted as to how this had occurred and could offer no explanation for the presence of the Ketoprofen in the horse’s system on this third occasion. 28. Mr Townley explained that he had purchased two bottles of “Key Injection” containing Ketoprofen in July 2017 and that he had only half a bottle left by the time the second positive swab was returned, which meant of a total of 15 doses available, he had given more or less one dose per horse in his team for approximately 10 or so months. 29. He emphasised that after the second swab and the removal of the bottles by Racecourse Investigators there was no Ketoprofen on the property. The absence of Ketoprofen from the property post 16 March 2018 was not disputed before this Committee. 30. Both parties addressed the Committee on the relevant penalty principles with Mrs Williams emphasising the key principles of denunciation and deterrence, that the punishment ought not to be disproportionate to the breach, the need to rehabilitate the offender and the overall interests of racing in promoting the presentation of horses for racing which are free from prohibited substances. Mr Townley accepted that those were the relevant sentencing principles and understood that the Committee must mark its disapproval of any breach of this rule, let alone a third breach of this rule, but emphasised that there was no need to further deter him given the fines already imposed on him and the steps he has taken to address the problem after the second positive swab. 31. Mr Townley called two men to give character evidence for him. The first was a Mr Dean Hunter who was a member of the New Zealand Police for 21 years and thereafter involved in asset recovery and otherwise the holder of a licence to train for many years. He told the Committee that he had known Mr Townley for 45 years and that he found him to be honest and trustworthy, that he was a man of considerable training skill and prowess who was a great mentor to him and someone who had, in Mr Hunter’s experience, always been careful around supplements and additives and was something of a stickler for compliance with the rules and in particular, the prohibited substance rule. Like Mr Townley, Mr Hunter suggested that after the second positive swab and the removal of Ketoprofen from the stables by the Racecourse Investigators the only possible source for the third positive swab was contamination. 32. Mr Hunter was at pains to emphasise Mr Townley’s integrity. 33. The second man who gave character evidence to the Committee was a Mr Bruce Dawson. Mr Dawson was for many years a Justice of the Peace and sat in a judicial capacity in the District Courts of the Otago/Southland area. Mr Dawson had visited Mr Townley’s stable on a number of occasions and was impressed with how clean it was and how well it was run and commented that he found Mr Townley to be “very fussy”. He said that given his personal experiences of dealing with Mr Townley, he was extremely surprised that he suffered three positive swabs in quick succession and in circumstances where there was no real explanation for the third positive swab at all. Mr Dawson suggested that this third charge should be dealt with more leniently because Mr Townley had done all he could reasonably do after the second positive swab to ensure compliance with the Rules. Mr Dawson was concerned for Mr Townley’s financial position noting the level of fine proposed and emphasised that disqualification would be catastrophic to Mr Townley. 34. Mr Townley concluded his penalty submissions by commenting that only a fool would continue to use or otherwise present horses to race with a prohibited substance when under investigation or otherwise charged for presenting horses with the same prohibited substance. He noted that this period of two or so months during which three positive swabs were returned, had already cost him $18,000.00 in fines and that the Committee ought to deal with this third breach differently than the two earlier breaches where he was perhaps slow to react. Mr Townley was distressed at the prospect of disqualification. Fixing a starting point 35. The JCA penalty guide provides suggested tariffs for a first and second breach but does not go further and suggest penalties for further or multiple breaches. That the guide does not go further is reflected in the penalties imposed in the decisions referred to by Mrs Williams, which vary both as to type and quantum or length. No two cases are alike and the Committee must start the penalty exercise by determining the level of culpability in the instant case. 36. We believe Mr Townley’s culpability to be in the low to mid range on this occasion. The Committee accepts that Mr Townley made a number of changes to his stable operation following the earlier positive swabs, which have seen his horses pass a number of subsequent urine samples with clear results. Mr Townley has hired a vet to administer all pre-race treatments and otherwise to advise on the possible source of the ketoprofen in the third positive swab noting that it is not disputed by the parties that there was no ketoprofen on Mr Townley’s property after the bottle of “key injection” was removed from the stables by Investigators on or after 16 March 2018. 37. In fixing culpability and accepting Mr Townley’s submissions as to his reduced culpability on this third occasion, the Committee has had particular regard to the evidence of Messrs Hunter and Dawson as to Mr Townley’s character. They gave credible character evidence which enables the Committee to accept that Mr Townley is at a genuine loss as to how Ketoprofen entered the horse’s system and that this was neither a deliberate or negligent act on his part. Further, that he has done everything he could do since the two earlier positive swabs to root out the problem and remove it. That Mr Townley has succeeded is supported by the clear swabs since enjoyed by his team of horses. This is not a case of Mr Townley stumbling on blindly to the problem and taking no steps to address it after the second positive swab. 38. Accordingly, we fix the starting point fine for this breach in isolation but having regard to the JCA Penalty Guide at $12,000.00. Aggravating Factors 39. We find the sole aggravating factor to be the third breach of the Rule within a period of no more than three months. For that aggravating factor alone we increase the starting point fine by $8,000.00 to $20,000.00. We disregard the Australian breach as historic and no longer relevant. Mitigating Factors 40. We find the following as mitigating factors: Mr Townley’s frank and prompt admission, the changes he has made to the recording and storing of medications, the removal of a large number of old medications and treatments from his stable, his use of a vet and otherwise his good history and reputation. 41. For those factors combined we will deduct $5,000.00 from the fine for mitigation. 42. If we approach the penalty on the basis of a fine only therefore, we would get to a fine of $15,000.00. However, the circumstances of a third breach within a short timeframe and the nature of the two earlier breaches mean that we must consider whether a fine is the appropriate remedy or whether, as is submitted by Mrs Williams, Mr Townley ought to be disqualified. Analysis – whether to go further and disqualify? 43. It is important at this juncture to record the primary purpose of disciplinary proceedings under the Rules of Harness Racing. Punishment is not the primary purpose. Rather, the purposes of disciplinary proceedings are set out in Clause 5, Fifth Schedule, Rules of Harness Racing and include: a) to ensure that racing is conducted in accordance with the code rules; b) to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry; c) to uphold and maintain the integrity of the sport of racing and the racing industry; d) to protect the participants in the sport of racing, the racing industry, and the public. 44. These principles originate from the Supreme Court judgment in Z v Complaints Assessment Committee [2009] 1 NZLR 1 and have been expressly adopted by the Code in the Rules. They are binding on a Judicial Committee and must be observed. 45. As already noted the decisions referred to by Mrs Williams varied significantly as to penalty and highlight that disqualification is, in fact, rare even in cases of multiple breaches. Indeed the only case of disqualification presented to the Committee was that of Mitchell whose original disqualification for three charges of presenting horses with elevated TC02 results of 12 months disqualification was reduced on appeal to 9 months and a fine of $4,500.00 noting that Mr Mitchell had previously been charged with presenting a horse with an elevated TC02 and fined earlier such that on that occasion it was in effect Mr Mitchell’s second, third and fourth offence across a period of several months. This case is different in kind to Mitchell in terms of duration, substance and culpability. 46. That this is the third breach in a short period means that the Committee ought to also consider the overall effect of the penalty on Mr Townley across the three penalties imposed on him in total. The Committee has considered Mr Townley’s submission to this effect and has determined that the totality principle is relevant and applicable here. 47. At the heart of the totality principle is the need for the punishment to meet the crime and that when arriving at an appropriate penalty for several breaches, a Committee must not only assess each breach individually, but also assess the licensee’s overall culpability and determine what effective penalty is appropriate for the totality of the licensee’s conduct. 48. Again, this is an acknowledgement that the penalty analysis is driven by the need to match the penalty with the gravity of the overall conduct. Further, factors such as age are relevant considerations that should be taken into account when ensuring that the overall end penalty is not crushing or unfair. 49. The totality principle is not limited to assessing one penalty for multiple breaches and extends to assessing successive but proximate penalties for separate events. Here where there have been three breaches that have resulted in three penalty hearings before three different Committees, the proper approach is for this Committee to reflect on what the appropriate overall penalty would have been if Mr Townley had been sentenced on all matters at the same time, and to adjust the penalty imposed for the third breach accordingly. What is required is an assessment of the cumulative effect of the penalties in combination with earlier penalties, so that the end penalty for the overall offending is not wholly disproportionate. 50. We have done this. The Committee accepts that the effect of disqualification on Mr Townley would have a crushing effect, would see him forced into early retirement and ruin his reputation. It would be a tragic end to a notable training career. It would see his stable cease operation and horses transferred to other stables. We accept that that is too harsh a penalty and would be wholly disproportionate to Mr Townley’s overall culpability. 51. This third breach is different in kind to the two earlier breaches and, stepping back, the Committee determines that denunciation and deterrence are served by a further fine on this occasion. Mr Townley confirmed to the Committee that he could afford to pay another fine. 52. We have considered totality in terms of a fine too. Adopting the end point fine outlined above and then stepping back and viewing the three fines together ($7,000.00 plus $11,000.00 plus $15,000.00) means a total overall fine of $33,000.00. 53. A fine sum of $33,000.00 is not disproportionate to the gravity of his breaches overall, namely across the three breaches of the Rule to date. 54. That is a great deal of money. It will hurt Mr Townley but it will not break him and importantly, it will serve as a warning to all licensees of the importance of strict adherence to the prohibited substance rule. 55. Accordingly, while Mr Townley has avoided disqualification on this occasion, the fine will not be further reduced for totality purposes. 56. Mr Townley is fined $15,000.00 for this third breach of the Rules. 57. The Committee further orders that the horse WELL DEFINED is disqualified per Rule 1004(8) from Monday, 30 July 2018. 58. Mr Townley is ordered to pay the costs of the reserve sample in the amount of $1,250.00. There will be no other orders for costs either of the Informant or of the Committee. DM Jackson Chair ________________________________________________ Harnesslink Media

Harness Racing Victoria (HRV) Stewards have issued a charge against licensed trainer Trish McVeigh under Australian Harness Racing Rule (AHRR) 190(1) which states:      A horse shall be presented for a race free of prohibited substances It is alleged that Ms McVeigh presented the horse ‘Angus Bromac NZ’ to race at Maryborough on 30 April 2018 not free of arsenic, a prohibited substance when evidenced at a concentration above the allowable threshold. Ms McVeigh has also been issued with a charge for failing to keep and maintain a log book in accordance with the AHRR. The charges will be heard by the HRV Racing Appeals and Disciplinary (RAD) Board on a date to be fixed.   Harness Racing Victoria

ON Friday 6 July 2018, Harness Racing New South Wales (HRNSW) Stewards, acting under the provisions of Australian Harness Racing Rule 183, suspended the Trainer and Driver licences of Mr Gary Litzow after receiving advice from the Australian Racing Forensic Laboratory (ARFL) that Total Carbon Dioxide (TCO2) above the prescribed threshold was detected in a pre-race blood sample taken from HEEZ PERFECT prior to race 8, THE PETER JACKSON BOOKMAKER MEMBERSHIP DRAW PACE (1980 metres) conducted at Tamworth on Sunday 17 June 2018. The “B” sample was analysed by the Racing Science Centre (QRIC) in Queensland and was reported below the prescribed threshold. HRNSW Stewards considered available information, including submissions on behalf of Mr Litzow, prior to the imposition of Australian Harness Racing Rule (AHRR) 183. Mr Litzow was informed of his right to appeal this decision. Acting under the provisions of Rule 183A, it has also been determined that HEEZ PERFECT, the horse subject of the ARFL certificate, shall not be nominated or compete in any race until the outcome of an inquiry or investigation. This had immediate effect from 28 June 2018. A date for the Inquiry has not been scheduled at this time.   Harness Racing NSW (HRNSW) is the controlling body for harness racing in New South Wales with responsibility for commercial and regulatory management of the industry including 33 racing clubs across the State.  HRNSW is headed by an industry-appointed Board of Directors and is independent of Government. To arrange an interview or for further information please contact: MICHAEL PRENTICE | INTEGRITY MANAGER (02) 9722 6600 •  mprentice@hrnsw.com.au GRANT ADAMS | CHAIRMAN OF STEWARDS (02) 9722 6600 •  gadams@hrnsw.com.au

Harness Racing Victoria (HRV) Stewards have issued a charge against licensed trainer Gary Quinlan under Australian Harness Racing Rule (AHRR) 190(1) which states: A horse shall be presented for a race free of prohibited substances. It is alleged that Mr Quinlan presented ‘Most Happy Cullen’ to race at Cranbourne on 19 April 2018 when not free of arsenic, a prohibited substance when evidenced at a concentration above the allowable threshold. The charge will be heard by the HRV Racing Appeals and Disciplinary (RAD) Board on a date to be fixed.   Harness Racing Victoria

On Thursday June 28, 2018 RWWA Stewards conducted the Stewards inquiry in relation to the report received from the ChemCentre in Perth, that the pre-race blood sample taken from TRISON prior to it competing in Race 1 at Gloucester Park on June 15 2018, has been found to have a level of total carbon dioxide content (TCO2) in excess of 36.0 millimoles per litre in plasma. Evidence was heard from RWWA Investigator Ms. F. Bennett, RWWA Industry Veterinarian Dr. J. Medd, Chem Centre Analyst Ms. M. Raghvani and trainer Mr. C. Suvaljko. Mr. Suvaljko pleaded guilty to the following charges: Charge under HRR190 (1),(2) Presentation free of prohibited substances,  with the particulars of the charge being that “Mr. Suvaljko as the trainer, presented TRISON to race in Race 1 at Gloucester Park on June 15, 2018 not free of the prohibited substance alkalinising agents, as evidenced by a concentration of TCO2 in excess of 36.0mm/L in plasma.” Charge under HRR 196C Administering Substance, with the particulars of the charge being that “Mr. Suvaljko did administer the alkalinising agent NEUTRADEX to TRISON, which was engaged to race in Race 1 at Gloucester Park on June 15, 2018, on Thursday June 14, 2018 which was within one clear day of the commencement of the race contrary to the provisions of Rule 196C.” Stewards, having reserved their decision with respect to penalty, advised Mr. Suvaljko yesterday that a disqualification of 12 months was being imposed with respect to the offence under HR190 and a fine of $2,000 for the offence under 196C. TRISON which finished 8th in the event was also disqualified. In determining the penalty Stewards took into account, amongst other things: The length and depth of Mr. Suvaljko’s involvement in harness racing and prior record which included three previous offences in relation to prohibited substances rules. The high level of TCO2 reported by both the Chem Centre (>39.0mm/L) and RASL (38.8mm/L) The serious nature of these offences and the need for deterrence both general and specific     Media Contact: Russell Quinn Manager Corporate Communications Ph: 9445 5418 E: russell.quinn@rwwa.com.au   RWWA

Harness Racing Victoria (HRV) Stewards have concluded an inquiry into a report received from Racing Analytical Services Laboratory (RASL) that Graceful Art returned an elevated plasma total carbon dioxide (TC02) reading in a pre-race blood sample taken from the gelding prior to it competing in Race 7 at the Mildura meeting conducted on 14 March 2018. Peter O’Brien, trainer of Graceful Art, was interviewed by HRV Stewards on 26 March 2018 concerning the husbandry practices adopted leading into the gelding’s engagement at Mildura on 14 March 2018.   Mr O’Brien provided further evidence to the inquiry in relation to the husbandry practices he adopted and a report from HRV Senior Veterinarian Dr Julia Aspinall concerning the product ‘Neutrolene Plus’ was considered. After consideration of all the evidence Mr O’Brien was found guilty of a charge under Australian Harness Racing Rule (AHRR) 196C(1)(b) which states: 196C.  (1)   A person must not administer an alkalinising agent in any manner to a horse which is engaged to run in a race: (b)  at any time within one (1) clear day of the commencement of the race. The particulars of the charge being: On 13 March 2018 when the trainer of Graceful Art he administered ‘Neutrolene Plus’, a product containing alkalinising agents, to that horse within one clear day of Graceful Art competing in Race 7 at the Mildura meeting conducted on 14 March 2018. In assessing penalty Stewards took into account: Mr O’Brien’s not guilty plea and prior offence record; Any penalty imposed must demonstrate the importance of only administering substances within the permitted timeframe determined by the AHRR; Mr O’Brien’s personal and financial circumstances; The administration occurred within one clear day of the race as opposed to raceday. Stewards accordingly imposed a fine of $3,000. After hearing submissions from Mr O’Brien and Ms Cassandra O’Brien, managing owner of Graceful Art, Stewards ordered under the provisions of AHRR 258(1) that Graceful Art be disqualified from its 5th placing in Race 7 at Mildura on 14 March 2018 and the placings were amended accordingly.   Harness Racing Victoria (HRV)  

The Harness Racing Victoria (HRV) Racing Appeals and Disciplinary (RAD) Board today (28th June) considered a charge issued by HRV Stewards under Australian Harness Racing Rule (AHRR) 190(1) against licensed trainer-driver Craig Turnbull. AHRR 190(1) reads as follows: A horse shall be presented for a race free of prohibited substances. The charge under AHRR 190(1) issued by HRV Stewards against Mr Turnbull related to a urine sample taken from the horse ‘The Russian’ at the Kyabram trial meeting on 24 September 2017. The definition of a ‘race’ within the AHRR includes an official trial. Racing Analytical Services Limited (RASL) reported that the analysis of the urine sample revealed it to contain the prohibited substance frusemide. The Australian Racing Forensic Laboratory (ARFL) in NSW confirmed these findings in the reserve portion of the relevant sample. Mr Turnbull pleaded guilty to the charge before submissions on penalty were presented. In deciding an appropriate penalty, the HRV RAD Board highlighted Mr Turnbull’s cooperation throughout the investigation and guilty plea at the earliest opportunity, along with his good record over a long period in the industry. The HRV RAD Board also highlighted the purpose of the rules in relation to prohibited substances and the dangers associated with horses competing with these substances in their system. Mr Turnbull was subsequently fined $3000, of which $1500 was suspended for a period of 12 months. HRV RAD Board Panel: Alanna Duffy (Chair), John Kearney

DESTREOS NZ INQUIRY –07 JUNE 2018 – KEN RATTRAY On Thursday 7 June 2018 stewards inquired into the results of analysis of samples taken from DESTREOS NZ prior to its competing in Race 3 at the Carrick Park Pacing Club on 31st December 2017. Evidence was heard from representatives of Racing Analytical Services Limited and the Racing Science Centre. Evidence was tendered by Mr Rattray in relation to his feeding regime and husbandry practices. Mr Rattray was issued with a charge in writing on 27th March 2018 pursuant to AHRR 190(1),(2) and (4) for failing to present DESTREOS NZ free of the prohibited substance Cobalt. Mr Rattray reserved his plea to the charge and after giving due consideration to the evidence tendered throughout the Inquiry Stewards sustained the charge. In determining penalty Stewards took into consideration Mr Rattrays reserved plea, his licence history, including that he had five prior disqualifications for prohibited substance matters, his personal subjective circumstances and the need that any penalty reflect the serious nature of prohibited substance offences and provide both a specific and general deterrent. Mr Rattray was disqualified for five years, commencing immediately and expiring at midnight on 6 June 2023. Acting under the provisions of AHRR 195 Stewards ordered that DESTREOS NZ be disqualified from the subject race and the placings will be amended accordingly. Mr Rattray has appealed against the conviction and penalty. Adrian Crowther CHAIRMAN OF STEWARDS – Harness (03) 6777 1900   Harnesslink Media

Harness Racing Victoria (HRV) Stewards have issued a charge against licensed trainer-driver Anthony Adams under Australian Harness Racing Rule (AHRR) 190(1) which states: A horse shall be presented for a race free of prohibited substances. It is alleged that Mr Adams presented ‘Lifeplusten’ to race at Mildura on 28 December 2017 when not free of arsenic, a prohibited substance when evidenced at a concentration above the allowable threshold. HRV Stewards also issued a further charge under AHRR 119C in relation to the stabling location of ‘Lifeplusten’ and ‘Mister Magic Man’ during the relevant time. The charges will be heard by the HRV Racing Appeals and Disciplinary (RAD) Board on a date to be fixed.   Harness Racing Victoria

Harness racing trainer Robert Dunn and his son John have successfully appealed their $14,000 fine given to them for presenting horses to race with a prohibited substance in their system. On the 4th July 2017 the New Zealand Racing Laboratory issued Analytical Reports indicating the presence of caffeine in four swabs taken from horses racing at Nelson on the 9th and 11th of June 2017. This started a lengthy investigation into why and how this stimulant (caffeine) came to be in the system of the winning horses and ended with a $7000 fine for both Robert and John handed down by the JCA in March 2018. The appeal which was held last Friday resulted in reducing the fine from $7,000 each down to $3,900 for both Robert and John Dunn.   Full details below:   BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY UNDER THE RACING ACT 2003 IN THE MATTER of the New Zealand Rules of Harness Racing ROBERT JOHN DUNN, Public Trainer & JOHN ROBERT DUNN, Open Horseman APPELLANTS RACING INTEGRITY UNIT (RIU) RESPONDENT Appeals Tribunal: Mr Murray McKechnie, Chairman & Professor Geoff Hall Present : Mr Paul Dale, Counsel for Messrs Dunn Mr Robert Dunn Mr Chris Lange, Counsel for RIU Mr Neil Grimstone, Manager Integrity RIU Dr Leo Molloy DECISION OF APPEALS TRIBUNAL OF JUDICIAL CONTROL AUTHORITY DATED THIS 1ST DAY OF JUNE 2018 1. INTRODUCTION 1.1 The Tribunal has heard an appeal from a decision of a Non-raceday Judicial Committee dated 28 March 2018. 1.2 Mr Robert John Dunn is a licensed public trainer and Mr John Robert Dunn is a licensed open horseman. Each faced four informations alleging breaches of the Prohibited Substance Rule 1004(1), (1A), (3), (3A) and (4) of the New Zealand Harness Rules of Racing. Those Rules are as follows: “Rule 1004(1) For the purpose of this rule a horse is presented for a race during the period commencing at 8.00 am on the day of the race for which the horse is nominated and ending at the time it leaves the racecourse after the running of that race. (1A) A horse shall be presented for a race free of prohibited substances. … (3) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules. (3A) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules. (3A) When a person is left in charge of a horse and the horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse and the person left in charge both commit a breach of these Rules. (4) A breach of sub-rule (1A), (2) or (3A) is committed regardless of the circumstances in which the .. prohibited substance came to be present in or on the horse. 1.3 The relevant Penalty Rule provides as follows: “Rule 1004(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to: (a) a fine not exceeding $20,000; and/or (b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.” 1.4 The informations faced by Messrs Dunn result from the Nelson Harness Racing Club’s meeting on 9 and 11 June 2017. On 9 June a horse trained by Mr Robert Dunn and in the charge of Mr John Dunn (Mr Robert Dunn not being present on course) named Rishi tested positive for caffeine following Race 2. The horse Hayden’s Meddle tested positive for caffeine following Race 7. The horse Billy Badger took part in Race 10 and following testing also tested positive for caffeine. Caffeine is a nominated prohibited substance. Each of the three horses, Rishi, Hayden’s Meddle and Billy Badger, had won their races and were subject to a mandatory disqualification under Rule 1004D or Rule 1004(8). On the second day of the meeting at Nelson, on 11 June, Billy Badger took part in Race 8 and won that race. He again tested positive for the prohibited substance caffeine. 2. HEARING BEFORE NON-RACEDAY JUDICIAL COMMITTEE 2.1 The RIU submitted an agreed Summary of Facts. That is set out in paragraph 7 of the decision under appeal. 2.2 The Non-raceday Judicial Committee (the Committee) recorded the submissions made for the RIU by Mr Grimstone and for Messrs Dunn by their lay advocate, Dr Leo Molloy. 3. THE APPROACH ON APPEAL 3.1 This appeal is by way of rehearing. 3.2 The Tribunal is guided by what was said in the Supreme Court judgment Kacen v Bashir (2010) NZSC112 at paragraphs 31 and 32 which are to the following effect: [31] The Court of Appeal discussed the application of the decision of this Court in Austin Nichols & Co Inc v Stichting Lodestar to the present kind of appeal. The Court correctly observed that on a general appeal of the present kind the appellate court has the responsibility of considering the merits of the case afresh. The weight it gives to the reasoning of the court or courts below is a matter for the appellate court’s assessment. We should add here that if the appellate court admits further evidence, that evidence will necessarily require de novo assessment and consideration of how it affects the correctness of the decision under appeal. The Court of Appeal was right to say that Courtney J had rather overstated the effect of Austin, Nichols when she indicated she should approach the appeal to the High Court “uninfluenced” by the reasoning of the Family Court. The High Court was required to reach its own conclusion, but this did not imply that it should disregard the Family Court’s decision. What, if any, influence the Family Court’s reasoning should have was for the High Court’s assessment. [32] But, for present purposes, the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of relevant consideration; or (4) the decision is plainly wrong. The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary. 4. THE CASE FOR THE APPELLANTS 4.1 Mr Dale submitted that there were three key facts which required consideration and which were not adequately addressed by the Committee. These facts are said to be: i There was evidence that the Appellants may not have been responsible for the administration of the prohibited substance caffeine and that this may have been done by some person bearing ill-will towards the Dunn stable or towards owners with horses in the stable. ii That the RIU acknowledged that neither of the Appellants had intentionally administered caffeine to the horses in order to gain any advantage. iii That the RIU had proposed that the offences be treated as a single breach when assessing penalty. 4.2 It was submitted that the factual background was very important and somewhat unique. There was evidence of a telephone discussion between two persons, one a former employee of the Dunn stable, which conversation was said to have involved discussion of the horses being drugged and that this discussion took place before any laboratory tests had become known. As a result of this telephone conversation it was argued that the Dunns may have been “framed”. Mr Dale, in correspondence with the RIU, proposed that charges not be laid or alternatively that there be no penalty other than disqualification of the horses. That course was followed in McInerney v Templeton 10 November 1999 Pankhurst J. The letter from Mr Dale to the RIU was followed up with a letter to the New Zealand Police and Mr Dale subsequently had discussions with a Christchurch based detective. Thereafter advice was given to Vodafone that Messrs Dunn would seek the telephone records in relation to the conversation said to have occurred in relation to the horses being drugged. An application was prepared for filing in the High Court seeking discovery against Vodafone. The Tribunal was advised that the Vodafone response to the request for information was that it no longer had the records as these were not kept beyond six months. Mr Dale emphasised that the commitment of resources and necessarily the expenditure of significant funds in an attempt to obtain non-party discovery was consistent with the Appellants’ belief that evidence favourable to their position might be available. 4.3 The legal submissions for the Appellants are discussed in paragraph 6 below. 5. THE HEARING BEFORE THE COMMITTEE 5.1 At the hearing before the Committee the Appellants were represented by the lay advocate, Dr Leo Molloy. Before the matter came before the Committee there had been extended discussions between Dr Molloy and Mr Grimstone, representing the RIU. The parties had essentially reached an agreed position. That position was as follows: i The RIU had endeavoured to identify any third party who may have been involved but could not do so. ii There was no evidence that either Mr Robert Dunn or Mr John Dunn had been responsible for administering the prohibited substance. iii The RIU would treat the multiple positive tests as a single event and would seek one penalty. It was the RIU submission that that penalty should start at around $4,000. iv The RIU would acknowledge the Appellants’ good records. The Tribunal observes that the RIU did not draw to the attention of the Committee the decision in the case of the RIU v Robert Dunn, John Dunn and Craig Smith dated 16 January 2017. That decision of a Non-raceday Judicial Committee arose out of events which occurred at Forbury Park Raceway in Dunedin on 23 June 2016. In response to the position taken by the RIU the stance taken by the Appellants before the Committee was as follows: i They would accept the presenting charges. ii They would deny any responsibility for the presence of the prohibited substance in the four horses. iii That the decision of the Non-raceday Judicial Committee in the case of RIU v Larsen 16 January 2017 should be the benchmark for setting the level of penalty. In that case the fine imposed was $200. Further reference will be made to the decision of the Non-raceday Judicial Committee and RIU v Larsen later in this decision. 5.2 The Committee delivered a comprehensive decision. The conclusion reached by the Committee was that there should be a total fine of $14,000, and it was appropriate that Mr Robert Dunn and Mr John Dunn each be fined $7,000. In summary, the most significant findings of the Committee are now set out: i That there was no evidence to confirm that there had been conduct by third parties involved in framing the Appellants or as it is sometimes known nobbling of the horses. ii The decisions in Burrows and McGrath which were put forward by Dr Molloy were not accepted as valid comparisons. iii Dr Molloy invited the Committee to dismiss the charges against Mr John Dunn. This the Committee rejected and pointed out that Mr Dunn had accepted his responsibility by way of his guilty pleas. The Committee drew attention to the fact that Mr John Dunn was the person “left in charge of a horse” and further that the horses were “presented to race in contravention of Rule 1(A)”. iv The Committee accepted that the offences were what is known as presentation offences rather than the more serious administration offences. The Committee did not accept the RIU submission that the nature of the prohibited substance and the surrounding circumstances should lead to a conclusion that there had been one breach for the purposes of setting penalty. v The Committee was not prepared to accept that the loss of stake money as a result of the horses’ disqualification, said to be at considerable cost to Messrs Dunn, was a significant matter in mitigation. vi The Committee accepted that culpability for breach of the prohibited substance rule can vary greatly but the Committee’s assessment (paragraph 47) was that there were multiple failings and that this put the level of offending at above mid-range. vii The Committee rejected the submission by Dr Molloy that the Dunn brand had been damaged beyond repair. The Committee recognised that the Dunns are longstanding industry participants but pointed out that the circumstances of how these horses came to be presented with a prohibited substance would not lead to damage of the licence holder’s reputation to the extent submitted by Dr Molloy. viii In paragraph 54 the Committee made reference to the RIU submission seeking a total fine of $4,000. The Committee made clear that this was considered far too lenient when the specific circumstances of the offending were taken into consideration. The Committee expressed the view that a fine at that level for eight breaches of the Prohibited Substance Rule would fail to have regard to the well-recognised sentencing principles and which principles were put forward by the RIU. ix The Committee gave consideration to the recent decisions in RIU v KD Townley, RIU v BR Negus, RIU v Edmonds and RIU v Brosnan. x The position of the Committee is succinctly set out in paragraph 59 of the decision which is as follows: We maintain the view that the position of the RIU still fails to have regard to the multiple nature of these breaches. While the RIU indicate that they could not rule out third party involvement, we make the observation that that is often a consideration in presentation breaches where the source of the prohibited substance is not known. In this particular case, while a possibility, we are not prepared to make such a definitive finding. xi The Committee took the view that it was appropriate to apply the $8,000 JCA Penalty Guideline figure in respect of each of the breaches on 9 June 2017. In relation to the second breach for Billy Badger on 11 June 2017 the Committee applied a figure of $4,000. This led to a starting point of $28,000. The Committee then applied what it described as “an appropriate adjustment to reflect the circumstances surrounding the breaches in accordance with the totality principle” and reduced the figure from $28,000 by just over one third to $18,600. xii In considering mitigation the Committee applied a discount of approximately 25 per cent. This was referenced to the previous record of the Appellants. As earlier noted the decision of the Non-Raceday Judicial Committee in RIU v Robert John Dunn and Craig Smith of 16 January 2017 was not drawn to the attention of the Committee. xiii The decision of the Non-Raceday Judicial Committee in RIU v Larsen 16 January 2017, which decision figured prominently in Mr Dale’s submissions, was not drawn to the attention of the Committee. 6. LEGAL SUBMISSIONS FOR APPELLANTS 6.1 It was said for the Appellants that it was difficult to follow the reasoning of the Committee in rejecting the RIU position that the charges should be viewed as one breach for the purposes of fixing penalty. 6.2 It was submitted that there was inadequate recognition by the Committee of the curious circumstances which suggested that other persons may have been involved. In the Tribunal’s view the Committee was right to emphasise that no conclusive evidence had been obtained to support the involvement of other parties. It was submitted that the circumstances around the possible involvement of other parties should have led to a comparison with the decision in RIU v Larsen. In the first place the Larsen decision was not drawn to the attention of the Committee. Secondly, the factual position in Larsen was significantly different. In that case the Non-Raceday Judicial Committee had before it evidence from which it was able to draw a compelling inferential conclusion that Mr Larsen had nothing whatever to do with the administration of the prohibited substance Ketoprofen. 6.3 Particular emphasis was placed upon the cooperation from the Appellants and the attempts made on their behalf to establish whether there was involvement of others. That cooperation was expressly acknowledged in the RIU submissions and it was contended for the Appellants that there was not adequate recognition of this in the decision under appeal. 6.4 The early pleas by the Appellants were emphasised by Mr Dale. 6.5 Attention was drawn to the fact that the penalty sought by the RIU was a fine of $4,000 whereas the penalty ultimately imposed was more than three times the sum sought by the prosecuting authority. This Tribunal recognises that a judicial or quasi judicial body is not bound to accept the penalty proposed by the prosecuting authority, however it is unusual but not unique for the penalty that is imposed to be significantly greater than that sought by the prosecutor. 6.6 In answer to a question from the Tribunal, Mr Dale advised that if the level of fine imposed had been as submitted by the RIU no appeal would have been lodged. 6.7 Mr Dale was reluctant to put forward an appropriate figure but made it plain to the Tribunal that a figure close to that put forward by the RIU was appropriate and that necessarily that would involve a significant reduction from the figure arrived at by the Committee. 7. THE POSITION OF THE RIU 7.1 The submissions filed by Mr Lange drew attention to a number of decisions which emphasised the significant obligation of licensed persons to ensure that racing was drug free. The most recent New Zealand authority is Justice 2012 a decision of the Appeals Tribunal. This was a high profile case following a positive test for a prohibited substance by the horse Smokin Up, the winner of the Interdominion Grand Final at Alexandra Park. 7.2 The RIU submissions correctly pointed out that the Prohibited Substance Rule does not require the investigation to establish how the substance came to be in the horse’s system. That is expressly recognised by Rule 1004(4) and by a number of judicial decisions. Further, the Rule requires licensed persons to take steps to ensure, so far as they are able, that there is no inadvertent administration or that the horses are not nobbled by some third party. 7.3 The RIU submissions acknowledge that the Committee imposed a penalty significantly higher than that submitted by the RIU. The submissions go on to point out that the Committee was not bound by the RIU submission and that it was for the Committee to make its own determination of the appropriate level of fine. 7.4 In relation to the appropriate approach that is to be taken in setting a penalty under the Rules of Harness Racing, the submissions make extensive reference to the judgment of the Supreme Court in Z v Complaints Assessment Committee [2009] 1NZLR1. In essence, that judgment emphasises that punishment is not the primary purpose of disciplinary proceedings, rather those proceedings are to protect the public who may have contact with the profession or industry where the breach of standards is said to have occurred. The RIU submissions drew attention to the fact that the principles that are set out in the Supreme Court judgment in Z v Complaints Assessment Committee are now expressly included in the Rules of Procedure for Judicial Committees and Appeals Tribunals under the New Zealand Rules of Harness Racing by reference to clause 5 which came into effect on 27 August 2015. 7.5 The RIU submissions referred to a number of decisions which bear some comparison. These included RIU v Edmonds 31 March 2016, RIU v Negus 20 March 2018, RIU v Brosnan 13 February 2018 and RIU v Larsen 16 January 2017. The submissions rightly point out that the facts of Larsen were unique and bear little or no meaningful comparison with the events under consideration here. 7.6 Reference is made in the RIU submissions to the decision in RIU v Robert Dunn, John Dunn and Craig Smith of 16 January 2017, which decision, as earlier observed, had not been drawn to the attention of the Committee. On that occasion Mr Robert Dunn was fined $4,000 and Mr John Dunn $2,000. It was said for the RIU that it would be open to the Tribunal to infer that those fines had not brought home to the Appellants the high standards expected of them in harness racing. 7.7 The RIU submissions conclude by observing that the Rules place the obligation on the trainer and the person in charge to ensure that a horse is free of prohibited substances and that given the number of breaches that occurred and by reference to relevant authorities, the penalty which the Committee set was within the range available to it. 7.8 The RIU submissions do not meaningfully address the reasoning behind the submission which the RIU put to the Committee that an appropriate fine – being a single fine in respect of both Appellants – was the figure of $4,000. 8. DISCUSSION 8.1 The Tribunal has concern that with reference to the three horses, Rishi, Hayden’s Meddle and Billy Badger, that tested positive following racing on 9 June 2017, the Committee adopted the $8,000 JCA Penalty Guidelines figure in each case thus reaching a figure of $24,000. The Tribunal considers that the breaches were at the lower end of mid-range. In those circumstances the Tribunal believes that it would have been more appropriate given that all the breaches took place on the same day at the same racecourse to have adopted a figure of $6,000 in respect of the three horses, Rishi, Hayden’s Meddle and Billy Badger. The figure for Billy Badger on 11 June might appropriately been $2,000. These figures just spoken of would lead to an initial starting point of $20,000. In paragraph 60 of the Committee’s decision there is an adjustment. There is reference to what is described as “an appropriate adjustment to reflect the circumstances surrounding these breaches in accordance with the totality principle…” The figure which the Committee adopted was just over one third. The Tribunal considers that the adjustment was appropriate. Adopting the same approach here, a discount of just a little over one third of, say, $7,000 would reduce the figure earlier spoken of being $20,000 to $13,000. 8.2 With reference to mitigation, the Committee applied a discount of approximately 25 per cent. In paragraph 61 of its decision the Committee expressly recognised the early admission of the offending by the Appellants, their cooperation and their previous records, albeit through no fault of the Committee there was no reference to the decision of 16 January 2017 spoken of earlier involving both Appellants and a member of their staff, Craig Smith. 8.3 In considering an appropriate allowance for mitigation the Tribunal considers that there might properly have been greater recognition of the position arrived at by the RIU and the Dunns’ advisors, Dr Molloy and Mr Dale. The extent to which the Appellants cooperated with RIU and the extent to which the RIU endeavoured to follow up the Appellants’ concerns is a situation for which both parties should receive recognition. That level of cooperation is seen all too infrequently within harness racing and the other two codes over which the JCA has authority. An appropriate figure to measure mitigation in the circumstances outlined would have been 40 per cent. That results in the figure of $13,000 arrived at in paragraph 8.1 above being reduced to $7,800. As did the Committee, the Tribunal considers that the fines should be shared equally between Messrs Robert Dunn and John Dunn. Each will be fined the sum of $3,900. 9. COSTS 9.1 At the conclusion of the hearing of the appeal in Auckland on Monday, 28 May 2018 the Tribunal indicated that it would invite submissions from both parties on the question of costs. That the Tribunal now does. An entirely preliminary view is that given the circumstances of this case and the outcome each of the parties might reasonably be required to meet their own costs and each make an equal contribution towards some costs in favour of the JCA. As both experienced counsel will know, the figure that is set for JCA costs is not commonly an indemnity figure but simply a contribution towards the costs of setting up and conducting the hearing. 9.2 Submissions on the issue of costs are sought from both parties within seven (7) working days of receipt of this decision: such submissions not to exceed three pages. DATED this 1st day of June 2018 Murray McKechnie Chairman (signed pursuant to the Fifth Schedule to the New Zealand Rules of Harness Racing)     Harnesslink Media

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