Appeal – Decision dated 20 May 2022 – Peter McKenzie

1. BACKGROUND
1.1 These proceedings have a long and torturous history. They arise from events that occurred in June 2019. At that time Mr McKenzie was training the thoroughbred horse Happy Star. The horse won a race at Trentham on 8 June 2019 and at Awapuni on 15 June 2019. On both occasions the horse was found to have an elevated level of the prohibited substance Cobalt and Informations were laid against Mr McKenzie as the registered trainer. Those Informations were as follows:
Information A7190 specifically alleged “That on the 8th June 2019 at Trentham Racecourse, being the registered trainer and person in charge of the horse, presented Happy Star to the Wellington Racing Club’s meeting for the purpose of engaging in and did engage in Race 6, failed to present the said horse free of the prohibited substance namely Cobalt, at an elevated level (>200ug/L) which is a prohibited substance of the type set out in Part A of Prohibited Substance Regulations, being a substance capable of acting directly or indirectly on the blood system”.
Information A7191 specifically alleged “That on the 15th June 2019 at Awapuni Racecourse, being the registered trainer and person in charge of the horse, presented Happy Star to the Manawatu Racing Club’s meeting for the purpose of engaging in and did engage in Race 7, failed to present the said horse free of the prohibited substance namely Cobalt, at an elevated level (>200ug/L) which is a prohibited substance of the type set out in Part A of Prohibited Substance Regulations, being a substance capable of acting directly or indirectly on the blood system”.

1.2 The relevant Rule under the Rules of New Zealand Thoroughbred Racing is No 804(2). This is in the following terms:
[4] Rule 804(2) states: When a horse which has been brought to a Racecourse or similar racing facility for the purposes of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules.

1.3 After much delay a hearing took place before a Judicial Committee of what was then known as the Judicial Control Authority on 24 August 2020 at Awapuni Racecourse. A reserved written decision issued on 16 September 2020. There had been significant delays leading up to that hearing, in part as a result of Covid restrictions and in part as a result of Mr McKenzie’s repeated requests to adjourn.

1.4 The Judicial Committee found the Informations proved and sought submissions as to penalty and costs. The Committee acting under the Rule 804(8) imposed a mandatory disqualification of Happy Star in respect of both races.

1.5 The penalty and costs decision of the Judicial Committee is dated 12 October 2020. It is a comprehensive decision as was that of 16 September 2020. Mr McKenzie was fined $6,000 on each charge; costs were awarded in favour of the Racing Integrity Unit in the sum of $12,500 and Mr McKenzie was ordered to pay costs in favour of the Judicial Control Authority in the sum of $10,000.

2. THE APPEAL
2.1 Mr McKenzie’s Notice of Appeal is dated 23 October 2020. Since that time Mr McKenzie has filed numerous documents with what is now known as the Racing Industry Board (RIB). He has furnished voluminous documentation which he contends supports the position which he takes in respect of the Appeal. Further reference will be made to this material later in the decision.

2.2 Mr McKenzie has sought to engage in communication with the Chairman of the Judicial Control Authority, the Hon Lyn Stevens QC and with the Chairman of the RIB, Sir Bruce Robertson. Both these persons are retired and respected former Judges of the Court of Appeal. Each has declined to engage in correspondence with Mr McKenzie. This Tribunal, with respect, believes that to have been the appropriate course. Mr McKenzie has also approached Mr Mike Clement, the CE of the RIB. Mr Clement has declined to become involved and indicated that any proposal by Mr McKenzie for an adjournment of the proceedings was for determination by this Tribunal. As will be seen from what is said later in this decision Mr McKenzie’s request for an adjournment was declined.

2.3 Mr McKenzie’s position is perhaps most comprehensively set out in his submissions dated 1 February 2022. In those submissions he repeated an earlier request that the Chairman recuse himself. The Chairman has declined to do so.

2.4 On 30 April 2021 at Rydges Airport Hotel in Wellington there was a preliminary hearing. A number of issues were raised and the Tribunal issued Directions. Those are attached to this appeal decision and should be read as part of this decision.

2.5 Following the hearing on 30 April 2021 there was further significant delay, in large part due to the difficulty in obtaining an appropriate venue as a result of the Covid restrictions then in place. Further, the parties were required to respond to the Directions made on 30 April 2021 and having done so the Tribunal issued a further Ruling on 17 June 2021. A copy of those Rulings are attached (seven pages) and should be read as part of the decision.

2.6 Following extended inquiry and much work undertaken by the Executive Officer of the RIB, a venue was located to hear the Appeal. This was at the Ohau Community Centre near Levin. The hearing took place on Monday 21 and Tuesday 22 of March this year. Following that hearing, on 25 March this year the Tribunal issued a Ruling in relation to outstanding issues. A copy of that ruling is attached to this decision – three pages and should be read as part of the decision.

2.7 Submissions have now been received in response to the Ruling of 25 March this year. Mr McKenzie has filed 13 pages of submissions. This notwithstanding that the Ruling of the 25 March expressly states in paragraph 2.4(iii) that each submission was not to exceed six pages. In addition to the 13 pages of submissions Mr McKenzie has furnished various annexures. These include a transcript of the hearing, a number of articles in relation to the governance of sport and the use of performance enhancing drugs. The Tribunal has looked at those voluminous attachments.

2.8 The RIB has filed submissions in response to those of Mr McKenzie. These submissions were dated 6 May 2022 and are six pages. There are no attachments.

3. THE GROUNDS OF APPEAL
3.1 The essence of Mr McKenzie’s appeal is that Cobalt should not be a prohibited substance under the Rules of Thoroughbred Racing. He has put this forward in a number of different ways which we quote:
• The Rule which is NOT FIT FOR PURPOSE. WHY? BECAUSE COBALT NEVER DID, DOES NOT AND NEVER WILL ALTER THE PERFORMANCE OF A RACEHORSE.
• Had there been the usual deliberate efficacy tests in determination for the need of the rule/law the appropriate tests to identify transgressions would have been developed to cater for and embody the control and policing of the required law or rule.
• A rule based on a substance with no efficacy tests, no trials, no local or international discussion predetermining the need for the rule.
• Nowhere was there science to justify the introduction of the rule.

In his submissions of 1 February 2022, referred to above, Mr McKenzie describes the position thus “It is a very sick joke”.

3.2 The expression “not fit for purpose” is repeated many times on the material Mr McKenzie has lodged with the Tribunal.

3.3 In the numerous articles and papers that Mr McKenzie has made available to the Tribunal, some from offshore, this material both with his submissions and on earlier occasions, it is clear the question of whether Cobalt is in fact a performance enhancing substance is in dispute by some in the scientific and veterinary communities. That material made available by Mr McKenzie has been looked at by the Tribunal. It is acknowledged that there is a difference of opinion within the scientific and veterinary communities in relation to what effect, if any Cobalt may have upon the performance of a thoroughbred horse.

3.4 Based upon the “not for purpose” submission Mr McKenzie advances two propositions. These are:
a. The Tribunal should not apply the rule and dismiss the charges; or
b. Adjourn the proceedings in order that the Board of New Zealand Thoroughbred Racing (NZTR) can examine the relevant rule. Clearly Mr McKenzie takes the view that the rule should be removed.

3.5 With reference to 3.4(b) above Mr McKenzie is of the view that the Board of NZTR should remove Cobalt from the nominated prohibited substances. The Tribunal has been furnished with correspondence from Mr McKenzie to and from the Board of NZTR. It is clear that the Board knows Mr McKenzie’s position. The Board has made clear to Mr McKenzie that no Rule change is contemplated. In those circumstances no adjournment of these proceedings can be entertained.

3.6 Before turning to Mr McKenzie’s proposition that the Rule should not apply, reference needs to be made to the Ruling of the Tribunal dated 25 March this year following the hearing at the Ohau Community Centre. That Ruling was largely concerned with the swabbing process and the testing of samples.

3.7 Mr McKenzie’s position is that the swabbing and testing process lacked validity and in consequence the readings returned cannot be relied upon. These issues were dealt with in detail in the comprehensive decision of the Non-Raceday Committee. The pouch containing sample 135476 had a minor tear. Ms Naomi Selvadurai, the Racing Operations Manager for RASL, gave evidence on this subject. She was unequivocal that there was no indication that the sample had been tampered with in any way. Further, Mr Howitt, the official racing analyst then sent the B sample of 135476 to the Chem Centre in Western Australia. The certificate received from the Chem Centre was consistent with that earlier obtained.

3.8 As to the swabbing procedures these were carefully considered by the Judicial Committee. We adopt the Ruling set out in paragraph 61 of the decision. That is in the following terms:
“We are also satisfied that the sample numbers 135476 from 8 June 2019 and 144265 from 15 June 2019 were appropriately taken by Swabbing Official, Ms Lavelle for the horse Happy Star. This is supported by the Individual Sample Identity Records for each sample being made available to the hearing and there is nothing to suggest that there were any irregularities in the swabbing process”.

3.9 The documentation required to be provided in terms of paragraph 2.2 of the Ruling of 25 March this year has been made available. As pointed out by Mr Irving much of that was earlier made available to Mr McKenzie but was apparently either not received by him or mislaid. There has been criticism by Mr McKenzie of the New Zealand Thoroughbred Swabbing Instructions. The Tribunal was advised that those swabbing instructions were provided to Mr McKenzie soon after the testing of Happy Star. There was thus no foundation for Mr McKenzie’s submission that there were no guidelines for swabbing procedures.

3.10 We turn then to the transport of the samples taken from Happy Star. The Tribunal adopts the Ruling of the Judicial Committee in relation to the transportation process. It can see no valid basis for departing from those findings and no credible critique has been made of them by the Appellant. Those findings are set out in paragraph 61, 62 and 64 of the decision of the Judicial Committee which are as follows:
[61] …Those individual samples were suitably delivered to the Palmerston North Airport for dispatch to the NZRLS by Mr Goodwin and the relevant dispatch records have been entered into evidence. Once received by NZRLS, the testing process includes that a selection, but not all, of the urine samples taken on race day are subsequently sent to Cobalt-specific testing. We are satisfied that the subsequent transfer and testing process between NZRLS and Eurofins is also without issues.
[62]     It is clear that in relation to Sample 135476, the security satchel Z062223 had a partially opened seal upon arrival at RASL in Victoria. We accept the evidence of Ms Naomi Selvadurai, including the photographs appendices to her evidential statement. She is highly qualified and has been in her current role since 2013. We        accept that whilst a 4cm opening did exist, it was insufficient to remove the bottle containing the sample and accept Ms Selvadurai’s evidence that the bottle itself had not been tampered with. This is also consistent with the lack of a “VOID” statement being visible with the partially opened seal. For these reasons, we form the view      that the Chain of Custody is sound and not in issue.
[64]    In this circumstance, a pouch that arrived at a Laboratory was partially opened, and therefore a decision was made to then have the Reserve tested at a different laboratory which is accredited to do so under the relevant Standard(s). We do not consider that to be unreasonable. Nonetheless, we must still be satisfied that the testing process of the Reserve Sample is robust and free from interference. We form the view that there is nothing to suggest that was not the case for the testing of the Reserve Sample 135476 by the Western Australia laboratory.

3.11 We turn to the testing procedure. Mr McKenzie did not make any meaningful challenge to this at the hearing before the Judicial Committee, nor did he call any evidence to take issue with the testing procedure which had been adopted.

3.12 On the issues of swabbing, testing and transportation of the samples Counsel for the RIB points to the comprehensive analysis of the Judicial Committee. Further, the RIB points to the absence of any contradictory evidence on behalf of Mr McKenzie. Moreover, Counsel for the RIB points to the standard of proof in proceedings under the NZTR Rules. That standard is on “the balance of probabilities”. That is the conventional civil standard of proof. The Tribunal is conscious that the more serious a charge, the more compelling the proof that is required. Reference the judgment of the Supreme Court of New Zealand in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1. It is satisfied that quite clearly on the “balance of probabilities” the swabbing process, the testing of the samples and the transportation of those samples did not lack integrity.

4. THE GROUND OF APPEAL THAT THE RULE IS “NOT FIT FOR PURPOSE” AND SHOULD NOT BE APPLIED
4.1 As explained earlier in this decision the Tribunal acknowledges that there is a difference of opinion amongst persons in Thoroughbred Racing as to whether or not Cobalt is in fact a performance enhancing substance. It is worth noting that Cobalt at different levels, is a prohibited substance across thoroughbred racing around the world.

4.2 Not only does Mr McKenzie contend that Cobalt is not performance enhancing, he further contends that the process by which the Rule was introduced in New Zealand was flawed. It is not appropriate for the Tribunal to examine how the Rule came to be adopted. The plain fact is that the Rule is in place and has been applied in a number of cases in recent years, some involving prominent Trainers and such cases have received widespread publicity. These cases are known to the Tribunal and in none of those has it been argued that Cobalt was not a performance enhancing substance, nor was it argued that the Rule should not be applied.

4.3 This Tribunal does not have any statutory function or power to change the NZTR Rules. Its function is to apply the rules that are in force. The relevant Rule has been in place for some years and as earlier noted has been applied frequently.

4.4 There can be no jurisprudential foundation for a statutory judicial body, which is the appropriate description of this Appeals Tribunal, to simply ignore a Rule or refuse to apply that Rule.

4.5 The Rules of NZTR are made by the Board of that body. This Tribunal has no power to amend Rules, delete existing Rules or make new Rules.

4.6 It follows from what has just been said that the Tribunal must apply the Rules that are currently in place. In so doing Mr McKenzie’s proposition set out in paragraph 3.4(a) above cannot be upheld.

5. APPEAL AGAINST A PENALTY
5.1 The Notice of Appeal dated 23 October 2020 indicates that the Appeal is against both the finding and the penalty.

5.2 Very limited submissions were directed to the Tribunal on the penalty question. The fines imposed by the Judicial Committee were entirely consistent with penalties imposed on other occasions in similar circumstances. The Tribunal can find no basis for disturbing the penalties that were imposed in each case.

6. CONCLUSION
6.1 The Appeal is dismissed: both in respect of the findings of the two breaches of Rule 804(2) and in respect of both penalty decisions.

7. COSTS

7.1 The submissions for the RIB indicated that in the event the appeal was unsuccessful, costs would be sought and advised that significant costs have been incurred. It is said for the RIB that this was a meritless appeal based upon an erroneous legal argument.

7.2 Both parties are to file submissions as to costs and indicating what figures are thought appropriate. Submissions for the RIB are to be filed with the Executive Officer by 3pm on Friday 3 June 2022. The submissions for Mr McKenzie on costs are to be filed with the Executive Officer of the RIB by 3pm on 17 June 2022. In both cases those submissions are not to exceed four pages.

DATED this 20th day of May 2022

Murray McKechnie
Chairman
Signed pursuant to Rule 1007(5)

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DIRECTIONS OF APPEALS TRIBUNAL

DATED THIS 30th DAY OF APRIL 2021

1. INTRODUCTION
1.1 At the Rydges Airport Hotel in Wellington today there has been a preliminary hearing in relation to Mr McKenzie’s Appeal. A number of issues required to be addressed and each shall now be addressed in turn:

2. PRELIMINARY ISSUE: FILMING OF PROCEEDINGS
2.1 By an email dated 27 April 2021 Mr McKenzie advised the Executive Officer of the JCA that he proposed to have the proceedings filmed. Upon arrival at the venue a photographer and colleague were found to be present. The Tribunal requested advice as to the reason for the filming. It was told that the film was to be used in a documentary being prepared for a review of the issue in relation to the prohibition of Cobalt. The Tribunal was advised that this documentary was being prepared partly in New Zealand and partly off-shore.

2.2 After some discussion the Tribunal explained that today’s proceedings were being recorded and that the transcript would be available. It was ruled that the filming of the proceedings was not appropriate, and a direction was made accordingly.

3. WITNESSES WHO MIGHT BE CALLED AT HEARING OF APPEAL
There were a number of witnesses who Mr McKenzie had advised in his email of 5 February 2021 were proposed to be called at the hearing of the Appeal. Submissions were invited from both parties in respect of those proposed witnesses, and each will now be taken in turn.

3.1 Miss Selvadurai
Mr Langbehn, Counsel for Mr McKenzie submitted that the witness was not adequately qualified. There was reference to a Minute of 8 June 2020 issued by the then-Chairman of the Non-Raceday Judicial Committee, Hon Warwick Gendall QC that the evidence of this witness could be received in written form. The record of the hearing before the Non-Raceday Judicial Committee indicates that the evidence was received in affidavit form. The Tribunal sought advice as to whether any application had been made to have Miss Selvadurai available for cross-examination. Mr McKenzie indicated that there was such a request made. He was asked if he could point to documentation in relation to that and he was not able to do so. The Committee directs that any documentation that demonstrates a request for this witness to be available for cross-examination is to be furnished to the Tribunal before the end of the month of May.
Mr Langbehn indicated that if there were to be cross-examination at the hearing of the Appeal, this would be by video link or telephone. Miss Selvadurai is domiciled in Australia. The Tribunal was told that the issue was the contents of the bottle and the security of the bag in which the bottle was placed. The evidence of the witness is that the bag had suffered some damage and further, that the contents of the bottle had not been compromised. It was Mr Langbehn’s submission that an ESR laboratory would be best qualified to determine whether there had been any compromise of the sample in the bottle. The location of the bottle was questioned and after some discussion and advice from Mr Irving, it was indicated that this was likely to still be in Australia. The RIU will please investigate that and advise before the end of May where that sample is and whether it could be made available for further examination.
On this subject Miss Smith for the RIU submitted that the hearing before the Non-Raceday Judicial Committee had proceeded in terms of the Minute of 8 June 2020. She acknowledged that Mr McKenzie did question the qualifications of the witness. The Tribunal was referred to photographs and to paragraphs 6 and 8 of the witness statement (affidavit). See also part 1 of the transcript, page 36. As to the second test of the sample, refer to the questions asked of the witness, Mr Howitt. The first test produced a reading of 517 and the second test a reading of 470. Note that the B sample which was sent to Western Australia also produced a result well in excess of the permitted level of 200. The photographs attached to the evidence (affidavit) of Miss Selvadurai are to be available to the Executive Officer of the JCA before 31 May 2021.

3.2 Michael Godber
Mr Godber is the General Manager of the RIU. Mr Langbehn submitted that emails between Mr Godber and Investigators and advice to and from the laboratories should have been disclosed. It is unclear whether there was any ruling by the Non-Raceday Judicial Committee as to whether Mr Godber should give evidence at the hearing.
The RIU is to advise what emails and any jobsheets and/or records of conversations relevant to this proceeding passed between Mr Godber, the Investigators, and the laboratories and whether those emails can be made available. If objection is taken to making those emails available, the documents will be made available to the Tribunal members and there will be an explanation from the RIU as to why objection is raised to their production. This by 31 May.

3.3 Bernard Saundry
Mr Saundry is the Chief Executive of NZTR. Questions were asked of him at the hearing for the Non-Raceday Judicial Committee about his history in relation to the classification of Cobalt as a prohibited substance. See hearing transcript 2, pages 24-25 and reference the decision of the Non-Raceday Judicial Committee paragraphs 34 and 35.
The RIU position is that the attitude of Mr Saundry as to Cobalt being a prohibited substance at certain prescribed levels is of very limited relevance and that nothing would be gained by having him called for giving evidence a second time. Further, Miss Smith pointed out that Mr Saundry had been cross-examined on this issue in some detail by Mr McKenzie at the hearing. Refer transcript 2 pages 26 and 27 and pages 32 and 33.

3.4 Neil Grimstone
The Tribunal was told that Mr McKenzie had requested that Mr Grimstone give evidence at the hearing before the Non-Raceday Judicial Committee and that the request was made the same time as that in relation to Mr Godber. Mr Grimstone is a Senior RIU Investigator. Miss Smith confirmed that sometime in August 2020 the request had been received and the RIU had indicated that it did not think Mr Grimstone was a necessary witness.
For Mr McKenzie it was submitted that the circumstances in which the B sample came to be sent to Western Australia was relevant and that Mr Grimstone could give evidence in respect of that. See decision of the Non-Raceday Judicial Committee at paragraphs 63 and 64.
It is the position for Mr McKenzie that the A sample should not be relied upon given the evidence of Miss Selvadurai as to the damage to the container and the effect that may have had upon the sample and that therefore the sending of the B sample to Western Australia for testing becomes critically important. It is clear from the evidence before the Non-Raceday Judicial Committee that the RIU took legal advice and then determined that the B sample should be sent. It emerged from discussion with Counsel and Mr Irving today that there are no protocols under the NZTR Rules for the testing of a second sample. In those circumstances the RIU chose to follow, in very general terms, the protocol or Rules of NZ Harness Racing. Those Rules we are told, are quite detailed. For Mr McKenzie it is said that the process which those Rules lay out was not correctly followed and that this is an issue that both Mr Grimstone and Mr Irving can speak to.
For the RIU Miss Smith says that there was no evidence to suggest that the testing of the B sample was in any way compromised.

3.5 Robert Howitt
This witness gave quite extended evidence before the Non-Raceday Judicial Committee. He managed the gathering and collection of samples. Mr Langbehn for Mr McKenzie said that his evidence was not complete and that he would have known something of the status of the B sample. Miss Smith pointed to Mr Howitt’s quite extensive evidence about the B sample. Mr Langbehn said that there was reference to a photo. The RIU will please investigate as to whether there was as a photo taken, who was the person who took that photo and if so, that is to be made available, again by the end of May. Refer evidence transcript 1, pages 20 to 25 and refer also to his evidence in relation to the advice he gave to the RIU.

3.6 Dr Andrew Grierson
Dr Grierson is a specialist equine veterinarian and highly qualified with extended experience.
It was said for Mr McKenzie that he did not have sufficient time to prepare a response to Dr Grierson’s evidence having only had that made available shortly before the hearing. It was said that in other publications and on different occasions Dr Grierson may have given evidence that is not consistent with that which he gave to the Non-Raceday Judicial Committee. Mr Langbehn explained that there are overseas authors who take a different view as to how Cobalt can be retained and what impact it has upon the metabolism of a horse. Likewise, differences in relation to the elimination times of the drug. It was said further that the evidence of Dr Grierson may have been relevant to the fixing of the level of penalty.
The RIU responded to the above by saying that if there is contradictory material as spoken of above, that will not advance the case for Mr McKenzie: rather it will simply emphasise that there are different views held about the effect of Cobalt on equine performance. Further, Miss Smith pointed out that in relation to penalty the Committee did not fix the level of penalty on the basis of the evidence of Dr Grierson or with reference to the level by which the Cobalt substance exceeded the permitted level.

3.7 Simon Irving
It is said that Mr Irving should be called to give evidence before the Appeals Tribunal for essentially the same reasons as Mr Grimstone. It was said that advice given by Mr Irving to Mr McKenzie in relation to the B sample was misleading although Mr Langbehn stressed that he did not submit that this was done wilfully. This request to have Mr Irving questioned further relates to the circumstances that led to the processes which were adopted with the B sample.
Miss Smith for the RIU refers to hearing transcript 2, pages 18 to 22 and says that the issue of how Mr Irving came to advise Mr McKenzie has already been adequately gone into. Reference also made to the logic for the B sample being tested by reference to the evidence of Mr Irving at volume 2, pages 18 to 22 and that thus what is now said has already been thoroughly canvassed at the hearing before the Non-Raceday Judicial Committee.

4. RULE FIT FOR PURPOSE
4.1 Following the resumption of proceedings after the luncheon adjournment Mr Langbehn addressed the Tribunal in relation to the above. He referred to an email which Mr McKenzie had circulated on 27 April. He put before and read to the Tribunal a three-page document entitled “Talking points prelim hearing – RIU v Peter McKenzie”. This document sets out through a series of bullet points why it is contended that the Rule in relation to Cobalt is inappropriate and essentially why it should first of all not have been adopted and now that it is in place, why it should be removed. This material concluded by proposing that the Tribunal adjourn these proceedings while attempts are made to have NZTR and perhaps also the Harness Racing and Greyhound Codes reconsider the position in relation to Cobalt, clearly with a view to the Cobalt Rule as it presently stands being significantly reviewed.

4.2 The Tribunal questioned Mr Langbehn as to how long it might take for the process to occur. It was not possible to estimate that time. Mr McKenzie was asked about approaches he had made to the Codes. It was clear from his answers that none had indicated any enthusiasm for undertaking a review and that Mr Saundry in particular, the Chief Executive of NZTR, was plainly opposed to any such review.

4.3 The Tribunal asked of the RIU whether there were any current Cobalt prosecutions underway. The Tribunal was advised that there are none currently underway. The real difficulty with this submission, all other considerations aside, is what the position would be going forward in the event that horses tested positive for the prohibited substance Cobalt. If these proceedings were adjourned pending the suggested review, then necessarily any other proceedings which might hereafter be initiated would have to also await the outcome of the suggested review if such were to take place. As to this proposal to adjourn until such review took place, the Tribunal will rule as part of its substantive decision.

5. STAY OF PROCEEDINGS
5.1 The Tribunal was told that the stake money for the two races in which the horse Happy Star tested positive have been paid out to the owners in terms of the decision of the Non-Raceday Judicial Committee. It follows that no stay is required in that regard.

5.2 Mr McKenzie advised that he has not paid the fine and costs as ordered by the Non-Raceday Judicial Committee. This Tribunal will put in place a stay for the payment of the fine and costs pending the outcome of the substantive hearing.

6. OVERSEAS WITNESSES
6.1 Mr Langbehn advised that if the Tribunal were to agree to examine the issue of whether the Rule was fit for purpose then it was proposed that overseas witnesses be called to demonstrate the inappropriateness of the Rule and why same is not fit for purpose. If that point be reached and the substantive hearing will determine that, then those witnesses will need to be identified. They will be required to provide written briefs significantly in advance of their giving of evidence and there will need to be advice as to how they are to be cross-examined.

7. HEARING DATE
7.1 All the material that the parties are to provide or the information that has been requested is to reach the Executive Officer of the JCA not later than the 31st of May. The Tribunal will then give directions as to the circulation of that material. When that material is circulated the parties will be asked to respond. Thereafter the Tribunal will issue rulings upon each of the issues that are canvassed in these directions.

7.2 Following the issue of that ruling the parties will be required to indicate their availability for the substantive hearing.

DATED this 30th day of April 2021

Murray McKechnie
Chairman

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RULINGS OF APPEALS TRIBUNAL

DATED THIS 17th DAY OF JUNE 2021

1. INTRODUCTION
1.1 There was a preliminary hearing in relation to Mr McKenzie’s Appeal on 30 April 2021. A number of directions were issued by the Tribunal.

1.2 Both parties have now responded to those directions and each of those issues will be addressed below.

2. PRELIMINARY ISSUE: JURISDICTION
2.1 Mr McKenzie responded to the directions of the Appeals Tribunal of 30 April this year by an email dated 31 May. In that email Mr McKenzie raised what he described as a preliminary matter. He submits that there is no case to answer because the substance Cobalt does not create erythropoiesis in a racehorse, and to adopt Mr McKenzie’s words “Cobalt never did, does not and never will alter the performance of a racehorse”.

2.2 In an email of 24 May 2021 Mr McKenzie made reference Ss 30 to 40 of the Racing Act 2003. These provisions have to do with the functions of the Judicial Control Authority. It is said in essence that the Rule which determines that Cobalt at certain levels is a prohibited substance is without validity and that it follows in consequence of that, this Tribunal has no authority or jurisdiction to hear the Appeal. It is said in Mr McKenzie’s submission of 24 May at paragraph nine as follows:
“The Industry and the JCA and its members, the ultimate controllers of racing integrity in New Zealand, are aware (or should be), or the illegitimacy of the Cobalt Rule.
As to previous cases where licensed trainers have pleaded guilty to breaches of the Cobalt Rule Mr McKenzie said in paragraph 4 of his 24 May submissions:
“Pleas based on ignorance, bullying by the RIU and no doubt assumed legitimacy of the role of the uninformed JCA Committees”.

2.3 Mr McKenzie repeatedly uses intemperate language in his memorandum of 24 May. At paragraph 10 is the following:
“Does this mean you are quite content to have the Racing Industry to be without any integrity with the ongoing prosecutions based on false science? You are happy to collude with the RIU in bullying racing trainers into pleading guilty to a Rule that is invalid? The inference being you acknowledge an inquiry ought to be held into the legitimacy of the Cobalt Rules, but you will not take the responsibility to direct that it should be done? Rather you prefer to “adopt the Rules as they are”, ignore section 37 of the Racing Act on the grounds of the impact the direction may have on other Cobalt positives? “

2.4 Mr McKenzie is also critical of the RIU again using intemperate language. Paragraph 11 is set out as follows:
“The RIU has a role to play here. Pursuing a prosecution based on demonstrably flawed science, resulting in a prosecution of an act that has NO IMPACT on the integrity of racing is not in the interest of racing or the New Zealand public, racing or otherwise. Racing gets enough negative press without this perpetuated inequity. Indeed such a prosecution is at best fallacious and at worst malicious”.

2.5 In responding to the directions of the Tribunal dated 30 April it is Mr McKenzie’s submission that the Rule for Cobalt as a prohibited drug is not fit for purpose and that in consequence of that circumstance the Tribunal has no jurisdiction to conduct these proceedings.
The proceedings are extant. A Non-Raceday Judicial Committee issued a comprehensive decision as long ago as 16 September 2020. The functions of the Judicial Control Authority are set out in s37(2) of the Racing Act 2003. Those functions include the appointment of Appeals Tribunals. Section 40(2) requires that every Appeals Tribunal shall hear and adjudicate on any Appeal made to it under clause 30 of Schedule 3. This is such an Appeal.

2.6 Reference has been made to Mr McKenzie’s submissions of 24 May 2021 and his response to the directions of the Tribunal in his memorandum of 31 May. Those submissions and the memorandum were not the first time that Mr McKenzie had raised the issue of whether the Judicial Control Authority had jurisdiction or it was appropriate to proceed with a hearing of the charge laid by the RIU. There was a procedural conference before the Non-Raceday Judicial Committee at Awapuni Racecourse on 8 June 2020. The Non-Raceday Judicial Committee as then constituted was the Hon Warwick Gendall QC, Chairman and Mr Noel McCutcheon. A comprehensive Minute was issued following the conference. Mr McKenzie had chosen not to attend in person or by a lay representative. The issue of the jurisdiction of the JCA and whether it should hear the proceedings brought by the RIU against Mr McKenzie was comprehensively dealt with in paragraphs 4 and 5 of that Minute. It is appropriate to set those out. They are as follows:
[4] First it is necessary to record that a JCA Judicial Committee is empowered and required to adopt the procedures, it thinks are necessary to ensure, timely, expedient, fair and reasonable measures to enable Informations to be heard and determined. The Respondent in his emails submission asserts that the Rule relating to Cobalt as a prohibited substance above a certain level is based upon flawed science and discredited. He asks that the Judicial Committee decline to proceed with hearing the Informations and “halt them” until “further investigation” of what he submits is “a matter” of integrity where many have been penalised for what has to be “scientific nonsense of a Rule”. He asked that a delay on litigation occur “pending an inquiry by NZ Racing into this rather perverse and unique situation”.
[5] The Committee and the JCA are bound by the Racing Act 2003 (for example s 39(2) and NZTR Rules) to hear matters brought before it. A call for inquiry into why a Rule exists, which is called for by the Respondent, but not contemplated or in train, is not something that can defer indefinitely the proper hearing of Informations. Naturally, if in the course of a proper hearing the arguments of a Respondent on the relevant issue are found to be valid then the JCA can Rule accordingly. The hearing of the Informations cannot be deflected and postponed as the Respondent claims and will have to proceed within the following directions and timetable.

2.7 The Judicial Control Authority is not the author of the Rules of New Zealand Thoroughbred Racing. It is a statutory body which is required to uphold and enforce those Rules. Persons who hold legitimate concerns about the Rules should address such concerns to New Zealand Thoroughbred Racing. It is not for the Appeals Tribunal to determine whether or not the relevant Rule is legitimate or, as contended by Mr McKenzie, based on erroneous scientific research and findings. Mr McKenzie’s proposition that a Rule not being fit for purpose means that the JCA cannot adjudicate upon that Rule is not tenable. The Appeals Tribunal must follow the Rules as they presently stand. Mr McKenzie’s submission that this Appeals Tribunal does not have jurisdiction cannot be accepted.

3. SECOND PRELIMINARY ISSUE: APPLICATION FOR THE CHAIRMAN TO RECUSE HIMSELF
3.1 Mr McKenzie has repeatedly requested that the Chairman recuse himself. This request is repeated in the most recent memorandum of 31 May responding to the directions of the Tribunal of 30 April and is based in part upon what the Chairman said when presiding at the hearing involving the trainers named Richardson and Parker. The application is also based upon alleged hostility by the Chairman. Mr McKenzie says that the Chairman of this Tribunal is biased.

3.2 Mr McKenzie’s application to have the Chairman to recuse himself has been previously rejected. Nothing new or meaningful on this subject has been put forward in Mr McKenzie’s most recent memorandum of 31 May. His request that the Chairman recuse himself is again refused.

The Tribunal now turns to the issues which were the subject of the directions dated 30 April 2021

4. WITNESS WHO MIGHT BE CALLED AT THE HEARING OF THE APPEAL
4.1 In an email of 5 February 2021 Mr McKenzie advised that there were a number of witnesses that he would wish to call at the hearing of the Appeal. On 30 April both parties were invited to make submissions on this issue and each of the suggested witnesses will be spoken of below.

4.2 It is important to emphasis that this is an Appeal hearing. The Appeals are to proceed by way of re-hearing. It is not a re-trial. Thus witnesses who gave evidence at the hearing before the Non-Raceday Judicial Committee will not be required or permitted to give evidence at the Appeal unless there be very compelling grounds for that to take place. The position of each of the witnesses will now be addressed.

4.3 Ms Selvadurai
The Non-Raceday Judicial Committee had directed that Ms Naomi Selvadurai give evidence in affidavit form. This was in Minute 6 of the then Chairman of the Non-Raceday Judicial Committee, the Hon Warwick Gendall QC dated 8 June 2020: see paragraph 10(b). That direction was reaffirmed in Minute No 13 of the Non-Raceday Judicial Committee of 18 August 2020: see paragraph 2. Ms Selvadurai is the Racing Operations Manager at RASL. Her evidence described receipt of the second sample received on 21 June 2019 and that the satchel was partially opened. It was her evidence that she did not believe that the opening of satchel was wide enough to remove the bottle which was contained in the satchel and she provided photographs.
Mr Langbehn, the lay advocate for Mr McKenzie at the hearing on 30 April this year submitted that this witness was not adequately qualified. The witness was not giving evidence as an expert: rather recounting what she saw upon the receipt of the satchel with the bottle contained within.
The Tribunal sought advice as to whether any application had been made to have Ms Selvadurai available for cross-examination before the Non-Raceday Judicial Committee. Ms Smith, Counsel for the RIU in her memorandum of 31 May this year acknowledged that Mr McKenzie first emailed on this subject on 7 August 2020 requesting that the witness be available. The RIU responded that it did not intend to call Ms Selvadurai and pointed to the ruling of 8 June 2020 referred to above. Mr McKenzie repeated that request on 14 August 2020 and the RIU responded by reiterating its position in an email to Mr McKenzie on 20 August 2020.
The Tribunal considers that the direction issued in Minute of 8 June 2020 and reaffirmed in the Minute No 13 of 18 August 2020 were appropriate and are binding. The Tribunal has read the affidavit and examined the photographs. Neither gives cause to doubt the accuracy of the evidence of this witness. For the reasons explained an application to have Ms Selvadurai give evidence at the substantive hearing of this Appeal is declined.
A question was raised on 30 April as to the location of the bottle received by Ms Selvadurai. Ms Smith for the RIU has advised that it is stored at the NZ Racing Laboratory Services as are all other samples.

4.4 Mr Michael Godber
Mr Godber is the Operations Manager of the RIU. He was not called to give evidence before the Non-Raceday Judicial Committee. At the hearing on 30 April it was submitted for Mr McKenzie that emails between Mr Godber and RIU investigators, together with advice to and from the laboratories should have been disclosed in advance of the hearing which took place before the Non-Raceday Judicial Committee. The Tribunal cannot locate any material to indicate that any such request was made in advance of the hearing before the Non-Raceday Judicial Committee. The RIU was requested in the ruling of 30 April to advise what email traffic had taken place of the kind spoken of above. The RIU resists the submission that the material sought is required to be disclosed. It is said that such material prepared by the prosecuting agency as part of its investigation and does not constitute relevant evidence in relation to the Information which had been laid against Mr McKenzie.
The Tribunal can see little or no relevance in how these internal emails or memorandum could have born upon the issues that were before the Non-Raceday Judicial Committee. There is no record to suggest that they were requested in advance of the hearing nor is there any credible suggestion by either party that they could have contained relevant evidence.

4.5 Mr Bernard Saundry
Mr Saundry is the Chief Executive of New Zealand Thoroughbred Racing. He gave evidence before the Non-Raceday Judicial Committee at the request of Mr McKenzie and having been directed to do so by the Non-Raceday Judicial Committee: see Minute No 10 of 4 August 2020. It is clear from the transcript of the hearing for the Non-Raceday Judicial Committee that Mr Saundry was questioned at length about how the relevant Rule came to be adopted by New Zealand Thoroughbred Racing. Mr McKenzie had ample opportunity to question Mr Saundry and the Tribunal can see no valid basis upon which this witness can be asked to give evidence a second time. For the RIU Ms Smith pointed out that the fixing of the prohibited level of Cobalt is of very limited relevance in determining whether there was a breach of the relevant Rule. Mr Saundry will not be required to appear before the Tribunal.

4.6 Mr Neil Grimstone
Mr Grimstone is a senior RIU investigator. At the hearing on 30 April Ms Smith confirmed that sometime in August 2020 a request had been received to have Mr Grimstone give evidence and that the RIU had indicated that he was not necessary. It was submitted for Mr McKenzie that the circumstances in which the B sample came to be sent to Western Australia for testing were relevant and that Mr Grimstone had a role in that process. Reference the decision of the Non-Raceday Judicial Committee at paragraphs 63 and 64. For the RIU Ms Smith submitted that there was no evidence at all to suggest that the testing of the B sample had in some way been compromised. There was an unequivocal finding in the decision of the Non-Raceday Judicial Committee at paragraph 64 that there was nothing to suggest that the testing process for the reserve sample was in some way compromised. The application to have Mr Grimstone give evidence at the Appeal hearing is declined.

4.7 Mr Robert Howitt
Mr Howitt managed the gathering and collection of samples. He gave detailed evidence before the Non-Raceday Judicial Committee. Mr Langbehn for Mr McKenzie said that this evidence was not complete. The RIU was requested to investigate as to whether there were photographs taken and who took those photographs. This matter is referred to in the transcript of the hearing before the Non-Raceday Judicial Committee in transcript No 1 from pages 20 to 25.
The RIU have now advised that inquiry of Mr Howitt has established that New Zealand Racing Laboratory Services did not take photographs of the A sample prior to sending it to the Australian laboratories. There were photographs taken of the B sample prior to it being sent to Perth for analysis. The photographs were taken on 22 July 2019. With reference to the sub sampling procedure which was undertaken prior to the sub samples being sent to Mr Major, an expert engaged by Mr McKenzie, photographs were taken on 22 May 2020 and further photographs taken during the procedure with the B sample on 10 June 2020. Those photographs have been made available.
The Tribunal can see no basis for requiring Mr Howitt to give evidence and the application in respect of that witness is declined.

4.8 Dr Andrew Grierson
At the hearing on 30 April it was said on behalf of Mr McKenzie that he did not have sufficient time to prepare a response to Dr Grierson’s written evidence. It was claimed that in certain publications and on other occasions Dr Grierson may have given advice that was not consistent with that which he gave to the Non-Raceday Judicial Committee. Mr Langbehn said that there were overseas authors who took a different view from Dr Grierson in relation to the retention of Cobalt and the impact which it might have upon a horse’s metabolism. Further, he said there were differences of opinion in relation to the elimination times of the drug from the metabolism of the horse. On behalf of Mr McKenzie, it was said that the evidence of Dr Grierson may have been relevant to fixing the level of penalty. The RIU responded to the submission just outlined by saying that if there were contradictory material that did not assist the case for Mr McKenzie. It would simply demonstrate what was already known: namely that there are different views held about the effect of Cobalt on equine performance. Ms Smith pointed out that in relation to penalty the Non-Raceday Judicial Committee made no reference to Dr Grierson’s evidence. Further, in fixing penalty the Non-Raceday Judicial Committee made no reference to the level by which the Cobalt exceeded the permissible level.
Nothing is to be gained by having Dr Grierson give evidence before the Tribunal and the application to call Dr Grierson to give evidence is declined.

4.9 Mr Simon Irving
At the hearing on 30 April it was submitted that Mr Irving should be called before the Appeals Tribunal for essentially the same reasons as were advanced in relation to Mr Grimstone. It was said that what Mr Irving told Mr McKenzie in relation to the B sample was misleading. Mr Langbehn acknowledged that he did not submit that this was done wilfully. The questions that it was proposed to be addressed to Mr Irving were to relate to the circumstances that led to the process which were adopted for the transportation of the B sample. Ms Smith in response referred to the transcript of the hearing before the Non-Raceday Judicial Committee no 2, pages 18 to 22. She submitted that the issue of how Mr Irving came to advise Mr McKenzie had been adequately gone into as that part of the transcript demonstrates and that it followed that the issue had already been thoroughly canvassed. The Tribunal has looked at the transcript and is satisfied that the issue has been adequately investigated and that no useful purpose woul d be served by having Mr Irving given evidence before the Tribunal. The application for Mr Irving to give evidence is declined.

5. IS THE RULE FIT FOR PURPOSE
5.1 At the hearing on 30 April Mr Langbehn addressed the Tribunal on this subject. He made reference to an email which Mr McKenzie had circulated on 27 April 2021. Much of what is said here is covered in the discussion under the jurisdiction issue in paragraph 2 above. In essence it was said that the Rule making Cobalt at certain levels a prohibited substance was erroneous and should never have been adopted in the first place. Further, that it should now be removed. It was contended that this Tribunal should adjourn these proceedings while attempts were made to have New Zealand Thoroughbred Racing and perhaps also the Harness Racing Code and the Greyhound Code reconsider the position in relation to Cobalt. Both Mr Langbehn and Mr McKenzie were unable to indicate whether there had been any indication given that a such review might take place. Moreover if there were to be such a review the outcome of it cannot be predicted. It was clear from the answers the Tribunal received that it was plain from discussion th at Mr McKenzie had with Mr Bernard Saundry that there was no enthusiasm for such a review. It follows that if there were to be an adjournment of these proceedings it is quite impossible to know what period of time might be required for that adjournment. Further, and importantly, these proceedings need to be brought to a conclusion. The events which led to the laying of the two Informations took place as long ago as 8 and 15 June 2019 when the horse Happy Star returned the positive Cobalt reading. The hearing before the Non-Raceday Judicial Committee did not take place until more than a year later on 24 August 2020. That delay was caused in part by Covid. It was also brought about in part by repeated requests from Mr McKenzie to adjourn the proceedings. Between the time the Informations were laid and the hearing on 24 August 2020, the Non-Raceday Judicial Committees (the composition of the Committees change from time to time) were required to issue no fewer than 14 Minutes in response to emails and memoranda from Mr McKenzie.

5.2 This Appeals Tribunal was appointed on 27 October 2020. Since that date it has been required to issue 12 Minutes or directions in response to communications from Mr McKenzie. Further, there was the extended preliminary hearing on 13 April, the directions which were given at that hearing and the receipt of the responses from Mr McKenzie and from Ms Smith, Counsel from the RIU which are referred to in earlier parts of this ruling.

5.3 The relevant Rule remains in place. At the time of the hearing on 30 April the RIU indicated that there were no current prosecutions under the Rule but it is quite impossible to know whether prosecutions may be laid in the future while the Rule is framed as it is presently.

5.4 For all the reasons set out above the application to postpone or adjourn this Appeal to await some possible revision of the relevant Rule cannot be accepted.

6. HEARING OF THE APPEAL
6.1 A date must now be set for the hearing of the substantive Appeal. That should take place at Rydges Hotel in Wellington, the same venue that was utilised on 30 April this year.

6.2 All those who are proposing to attend the substantive Appeal are to make enquiries as to their obligations over the next two months and indicate on what dates in July and August of this year they would be unavailable to attend a hearing in Wellington. The Tribunal considers that the hearing would occupy one full day. The parties would be invited to file submissions but it would not be necessary for either party to repeat a position which they have already set out – in some cases in very significant detail. Advice as to unavailable hearing dates in July and August are to be notified to the Executive Officer of the JCA not later than 3pm on Friday 25 June 2021.

DATED this 17th day of June 2021

_________________________________
Murray McKechnie
Chairman

Signed pursuant to Rule 1007(5)

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RULING OF APPEALS TRIBUNAL

DATED THIS 25th DAY OF MARCH 2022

1. INTRODUCTION
1.1 Mr McKenzie’s Appeal was heard at the Ohau Community Centre on Monday 21 and Tuesday 22 March 2022.

1.2 One of the many issues which arose during the course of the hearing was the swabbing procedure followed in relation to the horse Happy Star and whether the swabbing procedure and testing of samples had been properly carried out. This issue was referred to only very fleetingly in the submissions in support of the appeal from Mr McKenzie dated 1 February 2022.

1.3 In the course of his submissions Mr Langbehn sought to engage in a detailed analysis of the swabbing process and the testing of samples. Given that these issues had not been directly raised in Mr McKenzie’s submissions, the Tribunal ruled against hearing detailed submissions on these issues from Mr Langbehn. Later in the hearing it became apparent that these issues relating to the swabbing procedures and the testing of samples could be of real significance. Given that they had not been raised in any detail whatever in the submissions of 1 February and that Mr Langbehn’s proposed oral submissions were going to deal with the issues in some detail, Mr Dow pointed out that the RIB needed the opportunity to consider what might be said and make a response to it. Further, it became apparent that certain of the relevant documentation in relation to swabbing and testing of samples had somehow not reached Mr McKenzie. He told the Tribunal that he had not seen the RIU swabbing official guidelines for sample collecti on Thoroughbred and Harness Racing. Mr Irving told the Tribunal that he had sent these to Mr McKenzie as long ago as 9 July 2019. New Zealand Thoroughbred Racing (NZTR) has swabbing instructions. Mr McKenzie told the Tribunal he had not seen these. Mr Irving advised that he had sent them to Mr McKenzie on 18 July 2019.

2. RULING OF TRIBUNAL
2.1 Following the events set out in the introduction, the Tribunal determined that all parties, including the members of the Tribunal, were to be furnished with the RIU swabbing guidelines for sample collection in Thoroughbred and Harness together with the swabbing instructions. Mr Irving has now made available to the parties and to the Tribunal both the RIU swabbing official guidelines for sample collection in Thoroughbred and Harness and the NZTR swabbing instructions dated January 2006.

2.2 Further, Mr Irving has made available to the parties and the Tribunal the following documents:
i. Prohibited substance regulations for the rules of racing – six pages
ii. Certificate of analysis from IANZ accredited laboratory addressed to Mr Rob Howitt NZ Racing Laboratory Services Auckland dated 10 July 2019 – two pages
iii. RIU swabbing officials’ guidelines for sample collection thoroughbred and harness – two pages
iv. Copy letter from Racing Analytical Services Ltd, Flemington, Victoria, Australia to Rob Howitt, NZ Racing Laboratory Services Ltd signed by a David Batty 17 July 2019 – one page
v. RASL certificate of analysis signed by David Batty addressed to NZ Racing Laboratory Services Ltd dated 17 July 2019 – one page
vi. Copy of email sent by Mr Irving to Mr Peter McKenzie 9 July 2019 attaching the RIU swabbing official guidelines and providing advice as to how video link – one page
vii. Copy email Mr Irving to Mr McKenzie 11 July 2019 with reference to the swabbing instructions – one page
viii. Email Mr Irving to Mr McKenzie 18 July 2019 attaching the RASL certificate of analysis for the second sample. Also attaching the NZTR swabbing instructions referred to in Rule 210(1)(b). These provided by NZTR. Also a copy of the Prohibited Substance Regulations – one page.

2.3 The Tribunal finds it curious that Mr McKenzie advises that he did not receive the three emails from Mr Irving listed above together with the significant documentation which was attached.

2.4 In the light of the events outlined above the Tribunal has determined that both parties will have the opportunity to file written submissions in relation to the swabbing process and sample testing that was undertaken and whether there are any claimed deficiencies and if so, the advice as to those. Given that it is Mr McKenzie’s appeal, the submissions from him or from Mr Langbehn on his behalf should precede the submissions for the RIB. The following timetable is set:
i. Submissions on the issue of the swabbing procedure and on the issue of the testing of the samples from or on behalf of Mr McKenzie to be lodged with the Executive Officer of the RIB by 3pm Friday 15 April 2022.
ii. Reply submissions from the RIB to be lodged with the Executive Officer of the RIB by 3pm 6 May 2022.
iii. Each submission not to exceed six pages.

DATED this 25th day of March 2022

Murray McKechnie
Chairman