Appeal – Reserved Decision dated 9 July 2021 – Angela Turnwald

EVIDENCE:

[1] This is an Appeal by the Racing Integrity Unit (RIU) against a penalty decision of a Non Raceday Judicial Committee of the Judicial Control Authority, delivered on 21 April 2021, disqualifying Ms Turnwald, a Licensed Greyhound Trainer for four months.

[2] Ms Turnwald admitted an offence against Rule 61 of the New Zealand Rules of Racing, in that as the trainer of the dog “Zipping Sarah” she failed to present Zipping Sarah for a Race free of prohibited substances.

[3] On 12 November 2020, Zipping Sarah won Race 6 at the Christchurch Greyhound Racing Club meeting at Addington Raceway. The gross winning stake was $4,011. A post-race swab tested positive for Methamphetamine and Amphetamine.

[4] Rule 61 provides:

61.1 The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance.

61.4 Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.

[5] Under Rule 61.2 and 62.1 it is a strict liability offence, if, as in this case, the Trainer breaches the provision of the Rule.

[6] Methamphetamine and Amphetamine are both permanently banned prohibited substances. (Definition section and Fifth Schedule to Rules of Racing)

[7] Ms Turnwald admitted the charge and with the agreement of both Informant and Respondent, the Judicial Committee dealt with the matter on the papers pursuant to Rule 21.1.

Procedure on Appeals

[8] Rule 72.4 provides:

All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.

[9] The Appeals Tribunal may conduct the hearing as it thinks fit pursuant to Rule 72.2.

[10] Rule 73.2 provides that in the case of an appeal against penalty, the Appeals Tribunal may:

(a) confirm the Penalty and dismiss the appeal; or

(b) if the Penalty (either in whole or in part) is one which the Tribunal imposing it had no jurisdiction to impose, or is one which is manifestly excessive or inadequate or inappropriate, either:

(i) quash the penalty and impose such other Penalty permitted by these Rules (whether more or less severe) in substitution therefore as the Appeals Tribunal thinks ought to have been imposed or deal with the appellant in any other way that the Judicial Committee could have dealt with him/her on finding the information proved; or

(ii) quash any invalid part of the Penalty that is severable from residue; or

(iii) vary, within the limits permitted in the Rules, the Penalty or any part of it or any condition imposed in it.

(c) in any case of an appeal against the amount of any sum ordered to be paid, the Appeals Tribunal may confirm the amount or increase or reduce it within the limits imposed by these Rules;

(d) exercise any power that the Judicial Committee whose decision is appealed (if any) might have exercised;

(e) where no Penalty was imposed, impose such Penalty is as permitted by these Rules;

(f) refer any matter back to the Judicial Committee for further hearing or consideration or for re-hearing.

[11] The Appeals Tribunal in RIU v Lawson (13 May 2019), noted that “Although an Appeal is a rehearing, nevertheless careful consideration is always given to the initial Committee’s decision.”

Decision under Appeal

[12] After considering submissions as to Penalty from the Informant (RIU) and the Respondent, Ms Turnwald was disqualified for four months commencing on 30 April 2021 to 31 August 2021. She was ordered to pay $3,000 towards the costs of the RIU which was less than 50 percent of the costs actually incurred and $1,500 towards the Judicial Control Authority costs incurred in the proceedings.

[13] Zipping Sarah was disqualified as is mandatory pursuant to Rule 61.4 and the placings and stake monies were revised accordingly.

[14] The Judicial Committee acknowledged there was no deliberate wrong doing on the part of Ms Turnwald. The Judicial Committee considered that a fine would not be sufficient to meet the deterrent purpose of imposing a penalty but equally did not consider a lengthy disqualification was appropriate in this case.

[15] The Judicial Committee adopted a starting point of 8 months disqualification. It found there were no aggravating factors. It gave what it described as a “significant discount” of 50% for mitigating factors to reach an end disqualification of 4 months.

[16] The RIU appeals against the penalty of four months disqualification on the basis it is “manifestly inadequate and inappropriate” and inconsistent with previous relevant Judicial Control Authority decisions and the Penalty Guidelines published in 2014 by Greyhound Racing New Zealand (GRNZ).

[17] Counsel for the Respondent, Ms Turnwald, submitted that the Judicial Committee erred in failing to impose a fine (rather than a disqualification) and as a result the decision should be set aside. Further, as part of the disqualification has been served and taking into account the effects of a disqualification:

(a) the decision should be quashed with no penalty imposed; or

(b) the fine (at whatever level) should be remitted.

Factual Summary

[18] The Summary of Facts considered by the Judicial Committee was not in dispute:

1. The Respondent Helen Angela Turnwald is a Licensed Public Trainer under the Rules of New Zealand Greyhound Racing (GRNZ) and trains from her property near Foxton.

2. Ms Turnwald trains the dog ‘Zipping Sarah’ which was post-race swabbed (#123265) after winning Race 6 the ‘Len, Jane and Penny Hart Memorial Feature’ at the CGRC meeting at Addington Raceway on 12 November 2020.

3. ‘Zipping Sarah’ is owned by Tom Rodewald and the ‘Us syndicate’ and earned gross stake money of $4011.00 from the win.

4. On 27 November ‘Zipping Sarah’ was swabbed at Hatrick Raceway, subsequently returning clear.

5. On 30 November the NZ Racing Laboratory Services issued a Certificate of Analysis detailing the sample from Addington positive to Methamphetamine and Amphetamine.

6. Methamphetamine and Amphetamine are Category 2 Prohibited Substances per the 5th Schedule of the GRNZ Rules.

7. On 30 November Ms Turnwald and her partner, Licenced Kennel Hand Paul Freeman were interviewed at their property.

8. ‘Zipping Sarah’ and one other of Ms Turnwald’s greyhounds, ‘Emgrand Rose’ were transported in their kennel trailer from Foxton to Christchurch by Mr Freeman via road and ferry on the day of the race.

9. Mr Freeman rested for a few hours at an associate’s property near Kaiapoi Beach before continuing to Addington.

10. The greyhounds were kept in their trailer and were removed twice for exercise and ‘emptying’ on the grassed reserve area surrounding the beach property, with the associate handling ‘Zipping Sarah’ and Mr Freeman handling ‘Emgrand Rose’.

11. No obvious source of the Methamphetamine could be identified.

12. Ms Turnwald elected to have the B sample tested at the Australian Racing Forensic laboratory and on 17 December that laboratory issued an External Confirmation Test Certificate detailing the sample positive to Methamphetamine and Amphetamine.

13. Mr Freeman also stated that there were a number of syndicate members and supporters gathered around him and ‘Zipping Sarah’ post-race at the podium for the presentation.

14. Footage provided by Mr Freeman shows an individual patting the greyhound on her neck area.

15. No unusual bets were associated with the greyhound, the race or the connections.

16. Ms Turnwald has been training greyhounds for a number of years, some in partnership with Mr Freeman and she has no previous NRI charges for breaching GRNZ Rules.

[19] The Judicial Committee also recorded the following facts as not in dispute: (Para 6 of the Decision)

When interviewed by the Racecourse Investigator, the Respondent, and her partner (who is a Licensed Kennel Hand) could offer no explanation for the positive result. No products likely to contain derivatives of the Prohibited Substances were present at her premises. She said that the greyhound had been transported, together with another greyhound, from Foxton via road and then to Christchurch by her partner, during the day of the race. He had stopped for a few hours at a friend’s place at Kaiapoi, North of Christchurch. There the greyhound and its companion were removed from the trailer for exercise with “Zipping Sarah” being handled by the friend of the Kennel Hand. The greyhound was later presented to race through the Agent/Employee, Kennel Hand, of the Respondent.

[20] No issue was taken over the swabbing or sample analysis. Ms Turnwald elected to have the “B” sample analysed by the Australian Expert Laboratory (ARFL) which confirmed the positive analysis to both Methamphetamine and its metabolite Amphetamine.

[21] The estimated combined level of Amphetamine type substance (Methamphetamine and Amphetamine) detected in the urine sample was 1,630 ng/mL.  (Statements of Robert Howitt and Dr Adam Cawley).  The scientists stated that the estimated concentrations should be considered as qualitative and should not be interpreted for quantitative purposes. In comparison, the positive drug test cut off concentration applied in human urine drug testing under the international standard AS/NZS4308:2008 is 300 ng/mL (150 ng/mL Amphetamine and 150ng/mL Methamphetamine).

Expert Evidence

[22] Prior to the Respondent admitting the charge, the Informant obtained expert scientific opinion evidence that suggested there was a time frame of several hours between the ingestion of Methamphetamine and the taking of the urine sample at the race meeting. The Judicial Committee noted that this was because Methamphetamine takes time to break down into its metabolite, Amphetamine, and as the metabolism continues greater quantities are excreted into the urine. In this case, the quantitative data was that the vast majority of the Methamphetamine had already been metabolised into Amphetamine. The expert’s conclusion was that the greyhound had ingested Methamphetamine “at some time before the race meeting”.

[23] The Respondent was given time by the Judicial Committee to obtain her own expert opinion, but she did not do so. Through her Counsel she maintained that she entered the guilty plea because of the cost factor of obtaining such evidence and proceeding further. She maintained that position on Appeal.

[24] The Judicial Committee rejected the Respondent’s submission that this expert opinion, which was obtained prior to the Respondent’s decision to change her plea, should not be taken into account as it was not evidence as to relevant facts agreed between the parties.

[25] The Judicial Committee may receive any statement, document, information to assist its inquiry into liability and penalty and held the expert opinion evidence fell into that category.

[26] However, the scientists (who were not called as witnesses by the Appellant) acknowledged in their reports that their opinions had limitations.

[27] We set out the Appellant and Respondent’s submissions below.

SUBMISSIONS:

Appellant’s Submissions

[28]  The Appellant submits the starting point adopted in this case and thus the end penalty that flowed from it was manifestly inadequate having regard to two recent authorities relating to the presentation of greyhounds with Methamphetamine in their system, in which considerably lengthier periods of disqualification were imposed.

[29]  The Committee cannot be faulted for dealing with this case on the basis that all that can be said in this case is that [Methamphetamine] entered the greyhound’s system somehow during the time it left Foxton and when it arrived in Christchurch. The correct approach to penalty in that situation was to adopt a starting point in the vicinity of four years disqualification, in line with the Penalty Guidelines and the decision of the Judicial Committee in Schofield (29 April 2018).

[30]  The principal authority relied on by the Appellant is RIU v Schofield (2018). The earlier Schofield decision pre-dated the Penalty Guidelines and the Judicial Committees are not bound by it.

[31]  Mr Schofield was a Licensed Greyhound Trainer. He presented a greyhound named “Zipping Andre” for a race with Methamphetamine and Amphetamine in its system.  It was a race with a stake of $1,322.  It was not known how the dog had ingested Methamphetamine.

[32]  Mr Schofield had asked the RIU Investigators several times whether his son, who managed his training establishment, was using Methamphetamine. His son and other persons who lived at the training establishment had declined to provide hair samples for drug testing.  The Committee dealt with the issue of penalty “on the basis the reason for the positive is not known” which is not unusual in a presentation case.

[33]  The Committee considered the Penalty Guideline for Categories of Prohibited Substances noting that the recommended starting point of five years’ disqualification for a first offence would apply to an administration offence and said that a starting point of four years would be more appropriate for a presentation offence.

[34]  The fact that Mr Schofield’s son had most contact with the dog in its training was regarded by the Committee as “unusual.” The son’s Handler’s Licence had been revoked in 2016 and in 2011 the son had a dog return a positive test for Methamphetamine.

[35]  The Committee in the Schofield case took into account the penalty of three years disqualification imposed in RIU v Newton (Decision dated 2 October 2014) , a Thoroughbred case, where the Respondent was a Methamphetamine user which was at the higher end of culpability. The Committee also considered the 18 month disqualification imposed in the case of Greyhound Racing Victoria v Hunt, 29 April 2015 decision.

[36]  The Committee, did not identify any aggravating or mitigating factors with regard to the facts, adopting a starting point of four years disqualification.

[37]  The Committee took into account Mr Schofield’s “exemplary record” after being involved in the Industry for 15 years, his cooperation with the investigation, his admission of the breach and the fact a disqualification would have an adverse effect on his income. The Committee reduced the penalty to two years disqualification to reflect those personal factors.

[38]  The other recent authority is RIU v Toomer, (3 November 2020). The Judicial Committee in that case adopted a two year starting point (with reference to RIU v Schofield (2018)) which was further reduced to an end penalty of 14 months disqualification.  However, there is no issue that the Committee’s starting point of two years disqualification was an error as the ultimate penalty in Schofield was adopted as the starting point.

[39]  Mr Toomer’s negligence in allowing his son, who he knew had a history of drug use, to work closely with the dog was an aggravating feature, but the Committee regarded the son’s frankness about his drug use being the source of the contamination as a factor which made the case less serious than Schofield.

[40]  However, the rationale for the Committee’s conclusion that the fact the source of the contamination was known decreases culpability is not clear. As the starting point adopted is erroneous, the decision in Schofield [2018] should be preferred.

[41]  In the Respondent’s case, the Committee erred in adopting a starting point of eight months which is one sixth of that adopted in Schofield [2018], a decision which was based on no aggravating or mitigating factors and where the Methamphetamine source was unknown.

[42]  There are some policy reasons justifying a higher starting point. One of the most important is animal welfare (RIU v Alford, 10 May 2021).  In RIU v Donoghue (2019) a Judicial Committee warned of the dangers of Methamphetamine to public trust and confidence in the Industry.

[43]  The Penalty Guidelines acknowledge the fact that some prohibited substances are particularly harmful to a greyhound with permanently banned substances such as Methamphetamine in a category attracting a starting point of five years disqualification.

[44]  Both Schofield (2018) and Toomer regard the drug Methamphetamine as a particularly aggravating feature.

[45]  Given the important animal welfare considerations in these types of cases, and the need for general deterrence, a more severe penalty is called for. A starting point of 4 years disqualification that was in line with the previous authorities, adjusted to reflect the personal features relevant to Ms Turnwald would have resulted in a more appropriate penalty.

Respondent’s Submissions

[46]  The Judicial Committee erred in taking into account matters which were irrelevant and should have been ignored.

[47]  In particular, the Judicial Committee should have disregarded the opinion of the scientist, Dr Fitzmaurice and erred in rejecting the original defence of the Respondent as “untenable speculation.” The Committee “took a wrong turn at this point.”    In particular:

(a)  The charge is one commonly known as a breach of the Drug Negligence Rule. It was not a charge of administration.  By pleading guilty the Respondent accepted that the drug was in the dog’s system at race time, but the circumstances of contamination were accepted by everyone as being unknown.  In addition, the Respondent was found to have not been directly responsible for the negligence as she was not in control of the greyhound.

(b)  While it is accepted that the Committee can accept evidence which may not be admissible in Court, the approach still needs to be principled and fair. The offence is not a threshold offence in that the RIU need only prove the presence of the drug.  It is immaterial if the drug had no effect on the performance of the animal.

(c)  Dr Fitzmaurice’s opinion was based on a laboratory result which noted that the concentrations are estimates only and should be considered as qualitative. These estimated concentrations should not be interpreted for quantitative purposes.

[48]  Given that qualification and as the evidence had not been tested and negligence was in issue, the Committee should have proceeded on the basis that the time and source of contamination was unknown. The focus should have been only on the “level of the lack of care” as that is the essential inquiry and not treat the opinion of Dr Fitzmaurice as established fact.

[49]  The Respondent had evidence of a person touching the dog post-race and a witness recording an admission of that person having recently used Methamphetamine. There was no other evidence “to support Dr Fitzmaurice’s conclusion of pre-race contamination.”

[50]  The Judicial Committee erred in justifying reference to Dr Fitzmaurice’s report on the basis that “it establishes the Informant’s case.” However, the very issue that this report addressed is redundant as a result of the guilty plea.

[51]  The Judicial Committee’s “unnecessary findings” about “untenable speculation had consequences” including “painting” the respondent “in a bad light” and together with the inclusion of Dr Fitzmaurice’s evidence, has seen the press assume administration in this case (as opposed to presentation) with the follow-on negative publicity directed at the Respondent.

[52]  The five year disqualification starting point for category 2 substances in the categories of prohibited substances is not a Rule but merely a guidance tool and five years must logically be for the most serious end of offending ie: administration.

[53]  The Judicial Committee did not discuss the various sentencing factors it referred to in its decision. The “suggestion that Trainers are required to take ‘all possible steps to comply with the Rules and that a penalty will reinforce those requirements is unrealistic in this day and age.”

[54]  The only possible lack of care in this case is allowing the dog to be walked by a non-staff member with no indication they were a drug user.

[55]  The Schofield (2018) decision and the Toomer decision involved “completely different levels of negligence as the Trainers allowed the dogs to be trained in a high risk environment.” There is no reason to adopt the same starting point and to do so would be erroneous.

[56]  The appropriate starting point in this case is the first Schofield decision which pre-dates the Penalty Guidelines, which are Guidelines only, and do not distinguish between administration and presentation. The starting point should be a fine of $3,000.

[57]  The Judicial Committee did not consider the first Schofield  decision. The Toomer decision which was decided after the Guidelines were introduced effectively endorsed the first Schofield decision.  The only distinguishing factor that the RIU “can point to is that the first Schofield decision was before the Penalty Guidelines were published.”

[58]  The animal welfare aspect of Methamphetamine, and in particular, the very high level of the drug in Zipping Sarah’s system, should not have been “considered” by the Judicial Committee. The Appellant’s focus on the alleged failure of the Judicial Committee to recognise “the significant aggravating factor of the type of substance is misconceived.”  The type of drug can only be a “significant relevant factor in a case of administration and not one such as Methamphetamine which is a very transferable drug, prominently used in New Zealand by the full range of members of the public and where usage is not readily apparent.”

[59]  The primary focus in this case should be solely on the level of negligence and not the type of drug. The type of drug should be largely ignored.  The level of culpability in this case is at the very low end and the RIU “need to take some responsibility for creating uncertainty by failing to ensure that dogs do not come into contact with members of the public when the risk of cross-contamination is (in these times) possible.”

[60]  In support of this proposition, the case of RIU v Agent and K Williams (30 November 2020) which involved the drug caffeine (a category 4 prohibited substance) and the case of RIU v Rae and K Williams (27 November 2018) which involved Methamphetamine and Amphetamine are relied on.

[61]  In RIU v Fahey (17 September 2019) a case involving Codeine (a category one offence) which has a starting point twice that for Methamphetamine, a fine of $2,500 was imposed. The correct approach was “applied” in that case with the focus solely on the level of negligence.

[62]  The Judicial Committee failed to properly take into account the Respondent’s personal statement as to the financial, emotional and personal impact a disqualification would have on her.

[63]  The Respondent’s character reference confirms she is a positive role model in the Industry and she should not be excluded as a result of a disqualification. This is a case which clearly falls within the earlier Schofield decision and the appropriate starting point is a fine of $3,000, reduced for mitigating factors.

The Respondent’s personal submission

[64]  The Respondent read her submissions at the hearing. She described the very serious consequences a disqualification has had on her personal and professional life, her mental health, financial position, and the emotional stress of having to be disqualified including losing the care of her beloved dogs.  She also spoke of the negative impact of media attention to the Judicial Committee’s decision on her and her family.  We accept her submissions.

Decision

[65]  The Respondent’s guilty plea was to the charge that she had presented a greyhound, Zipping Sarah, to race with the prohibited substance Methamphetamine in its system, in other words before the greyhound raced, not after.

[66]  The facts in this case are that the (Methamphetamine) entered the greyhound’s system sometime during the period between it leaving Foxton and when it arrived in Christchurch.

[67]  The Trainer of a greyhound is responsible for the welfare and proper care of a greyhound and shall at all times comply with the Welfare Code. This responsibility cannot be delegated to any other person at any time. (Rule 87.5 Regulations of the New Zealand Greyhound Racing Association Incorporated)

[68]      A “starting point” for penalty is determined by assessing the seriousness of the offence and the culpability of the offender, which takes into account the aggravating and mitigating features relating to the offence, but before allowance is made for aggravating and mitigating factors personal to the offender.

[69]      The two relevant cases are RIU v Schofield (29 April 2018) and RIU v Toomer (3 November 2020) both relating to the presentation of greyhounds with Methamphetamine in their system.  The penalty decision in RIU v Schofield was considered by the Appeals Tribunal on an Appeal by Mr Schofield.  The Appeal was dismissed and the disqualification for 2 years was upheld (Reserved decision dated 16 May 2018).  The Appeals Tribunal considered the 4 year disqualification starting point was appropriate and that 50% deduction was a generous recognition of Mr Schofield’s circumstances and his contribution to greyhound racing.  The Appeals Tribunal stated: (At para 4.3)

The Tribunal is not persuaded that the culpability of Mr Denis Schofield is at the very low end of the scale as contended by Mr Sharp.  Placing the greyhounds in the day to day care of others and having little contact with them meant that there was inadequate supervision by the Registered Trainer.  Whether increased supervision by Mr Denis Schofield would have prevented ZIPPING ANDRE racing with a prohibited substance on the 29^th day of December 2017 necessarily cannot be affirmatively determined.  What is clear however is that Mr Denis Schofield delegated or transferred responsibility for his greyhounds to others.  If something in the conduct of those persons led to ZIPPING ANDRE being presented with the prohibited substance Methamphetamine then Mr Schofield must accept responsibility.

[70]  The principal aggravating feature identified in RIU v Schofield (2018), was the nature of the substance, Methamphetamine, and the consequent need for general deterrence. In both Schofield (2018) and Toomer, the Judicial Committee regarded Methamphetamine as a particularly aggravating factor.

[71]  We accept the submission of the RIU that the starting point adopted in RIU v Toomer was in error noting that the Committee in that case adopted “the Schofield 2 year disqualification penalty” ie: the end penalty as its starting point without any further explanation.

[72]  The earlier case of RIU v David Schofield, (12 December 2011) relied on by the Respondent pre-dated the Penalty Guidelines which indicated an intention for more severe penalties to be imposed for breaches involving prohibited substances than had previously been the case. It is not relevant.  The Judicial Committee was not bound by it.

[73]  The decision in RIU v K & L Rae and K Williams (27 November 2018) referred to by the Respondent on Appeal is of little relevance. It involved a horse and a breach of Rule 804 of the NZ Thoroughbred Racing which governs both administration of a prohibited substance and presentation of a horse with a prohibited substance in its metabolism and for which the maximum period of disqualification provided for by the NZ Thoroughbred Racing Rules is five years.  The level of contamination was described as “incredibly low”.    The Judicial Committee noted that the NZDDA threshold for workplace testing was 60 times the positive result in that case.  The Judicial Committee considered the level was such that it was not likely to have affected the performance of the horse.  The outcome in that case can be contrasted with the penalty of 3 years disqualification imposed in an earlier case on a Trainer (after a defended hearing) who presented a horse with Methamphetamine in its metabolism (RIU v Tracy Newton (2 October 2014))

[74]  Nor does a case involving presentation of a greyhound with Caffeine in its system provide assistance (RIU v TA Agent and K Williams (30 November 2020)).  That is a category 4 substance for which the Penalty Guidelines provide a starting point of disqualification of 6 months and/or a fine of $5,000. It is not comparable given the difference in the nature of the substance involved and the Guideline starting point.

[75]  In RIU v DC Fahey and JM Fahey (16 September 2019) the drug involved was Codeine. Codeine is a prescription medicine commonly used for pain relief in humans.   Evidence was produced that it is regularly prescribed as an effective treatment for severe pain in dogs.  The animal welfare concerns raised by ingestion of Methamphetamine were not a feature of that case.

[76]  We take into account the Penalty Guidelines which provide a guide for different categories of prohibited substance. As the Judicial Committee noted in its decision these Guidelines have been well publicised within greyhound racing. Permanently banned substances such as Methamphetamine attract a starting point of five years disqualification which is five times more than steroids, ten times more than performance enhancing substances and twenty times more than substances which have an accepted therapeutic use.  The Penalty Guidelines do not differentiate between an administration offence and a presentation offence.

[77]  We do not accept the submission made on behalf of the Respondent that the type of drug involved in a presentation case should be “largely ignored”.  That approach would ignore the impacts on the greyhound of the drug involved.

[78]  The Appeals Tribunal decision in RIU v Lawson (13 May 2019) is relevant. The Tribunal held that proceedings under the Rule of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/Industry and those who are to deal with the profession.

[79]  The importance of animal welfare in racing was emphasised by the Judicial Committee in RIU v Alford (10 May 2021). If animal welfare standards are not upheld in the Industry and when necessary with condign sanctions by the Judicial Control Authority, the Industry cannot maintain a social licence in order to continue to operate.

[80]  Methamphetamine is a potent central nervous system stimulant which poses significant animal health and welfare issues. It is an illegal Class A drug.  The dangers of Methamphetamine were highlighted in RIU v Donoghue (2019).  The Judicial Committee warned of the dangers of Methamphetamine noting that even if a race winner (in that case, a Thoroughbred horse) returned a positive swab in the circumstances when no blame could be apportioned “it could still have unreasonable consequences for public trust and confidence in the Industry”.

[81]  This is a strict liability offence. In order to defend such a charge a person must show a total absence of fault.  The Respondent is not being penalised for failing to take reasonable care, nor is there any allowance for offending outside her control.  There are no mitigating factors relating to this offending.

[82]  Animal welfare in the Industry is a paramount consideration and any breach must not be tolerated as it strikes at the very heart of the integrity and reputation of the Industry. Methamphetamine and Amphetamine have no purpose in a greyhound and no place in the Greyhound Racing sport/Industry.

[83]  It is incumbent on Owners and Trainers to protect their animals from exposure to Methamphetamine.  We agree with the Judicial Committee that strict vigilance is required.

[84]  The penalty imposed must act to denounce this offence.  The nature of the drug involved namely Methamphetamine is a particularly aggravating factor and the need for general deterrence requires a more severe penalty.  The level of Amphetamine (as it is metabolised from Methamphetamine) in the sample was particularly large in the greyhound Zipping Sarah.

[85]   For these reasons, a disqualification is the only proper sanction.

[86]  Taking into account the aggravating factors of this offending, the Penalty Guidelines and the decision in RIU v Schofield (2018) (as affirmed on Appeal), we are satisfied that the starting point of eight months adopted by the Judicial Committee is too low and that this starting point resulted in a penalty which was manifestly inadequate. We instead adopt a starting point of four years disqualification.

[87]  We take into account, as the Judicial Committee did, the Respondent’s personal mitigating factors including her blameless record over a lengthy period of training greyhounds, the fact she paid the winning stake to her syndicate owners, the loss of her percentage of the winning stake, the reputational loss as a Trainer and her personal submissions to this Tribunal.  We also take into account Ms Turnwald’s admission of the charge.  These personal mitigating circumstances justify a 50% or two year reduction in the starting point for Ms Turnwald’s disqualification, together with the order for costs imposed by the Judicial Committee. This would take the end penalty down to a disqualification of two years.

[88]  This is an Appeal against Penalty by the RIU.  On the Appeal the RIU submitted the end penalty should be 2 years disqualification however before the Judicial Committee the RIU submitted an end penalty of 14 months disqualification of the Respondent was appropriate.  This is an unusual situation.  While the RIU are not limited or bound by their original submissions before the Judicial Committee this change in approach is a matter which we take into account in fairness to the Respondent when considering and determining the Penalty Appeal.  In light of this matter we reduce the otherwise appropriate end penalty to one of 18 months disqualification.  Ms Turnwald is disqualified for 18 months from 30 April 2021, the same date her previous disqualification commenced.

Orders

[89]  The appeal is allowed.

(a)  Ms A H Turnwald Licensed Public Trainer is disqualified for 18 months to commence on 30 April 2021 to 29 October 2022.

(b)  Zipping Sarah is disqualified from first place in the Len, Jane and Penny Hart Memorial Feature at the CGRC meeting at Addington Raceway run on 12 November 2020. The Judge’s placings are to be adjusted.

(c)  The order for costs remains the same. Ms Turnwald is ordered to pay $3,000 towards the costs of the RIU and $500 towards the JCA costs as ordered by the Committee.  No further order for costs is made.

J H Lovell-Smith

Dated 9 July 2021