Appeal – Written Decision dated 3 June 2025 – Trent Yesberg

1. INTRODUCTION

1.1. Mr Yesberg appeals the decision of an Adjudicative Committee dated the 19th of March 2025. Mr Yesberg had pleaded guilty to a breach of Rule 1004A(2). The appeal is against penalty. Mr Yesberg was fined $8,500 and ordered to pay $900 to the RIB, that being 60% of the actual costs and expenses incurred, and $1,000 to the Adjudicative Committee, being 50% of its incurred expenses and costs etc.

1.2. The hearing was before a senior and experienced Adjudicative Committee. The Chairman is a respected retired Judge of the High Court. The other member of the Adjudicative Committee is a respected former Judge of the District Court. The decision under appeal is comprehensive.

1.3. Both parties have filed detailed submissions. The authorship of the submissions filed for Mr Yesberg is unclear. They were sent to the Administration Specialist of the RIB by Mr Yesberg, not by Ms Thomas. The submissions begin with the expression “may it please Your Honour”. That would indicate that the submissions were, in part at least, prepared by a legal practitioner. There is of course no Your Honour here on this Appeals Tribunal. The submissions were undated and unsigned.

2. RELEVANT RULES AND ESSENTIAL FACTS

2.1 On the 28th of July 2024, Mr Yesberg presented the horse Who’s Dreaming Now to take part in Race 3 at Addington Raceway. The horse won the race and earned a stake of $5,775. A post-race urine swab was taken. This demonstrated a Cobalt level of 222 micrograms per litre of urine. A certificate of analysis from the Melbourne Racing Analytical Service Limited returned a reading of Cobalt at a level in excess of 200ug/L which is the upper limit of the calibration range used by that laboratory. The permitted level is 100ug/L in urine. As the Adjudicative Committee observed, the Cobalt Rules must be well known to all Harness Racing Trainers. The horse was disqualified from the race.

2.2 Mr Yesberg has been a Licensed Harness Racing Trainer since 2015. He committed a breach of the Prohibited Substance Rule in 2021. He faced two charges in consequence.

2.3 Mr Yesberg presented a report to the Adjudicative Committee from Dr Derek Major, an Australian veterinarian which asserted that “urine is an unreliable source for testing Cobalt”. Dr Major is a well-known Cobalt sceptic. There was evidence before the Adjudicative Committee from the expert veterinarian Dr Grierson. This evidence was that injections of Hemoplex may raise Cobalt levels. That opinion had been advanced by Dr Grierson in the proceedings McKenzie v RIB (2022). That decision of the Appeals Tribunal is well known to this Tribunal. The decision followed a lengthy and strongly contested appeal in relation to the Cobalt Rules.

2.4 In the submissions for the RIB, Mr Dow has attached a letter from Dr Grierson which affirms his evidence given before the Adjudicative Committee. This Tribunal is not influenced in any direction by this letter from Dr Grierson. It does not detract from the material placed before the Adjudicative Committee.

2.5 After some delay, Mr Yesberg pleaded guilty. The hearing before the Adjudicative Committee was on the papers.

3. SUBMISSIONS IN SUPPORT OF APPEAL

3.1 It is submitted that the Adjudicative Committee did not have sufficient regard to the report from Dr Derek Major, which advanced the proposition that Cobalt levels in feed samples which were taken from Mr Yesberg’s premises, may have resulted in the prohibited level of Cobalt. Further, the report raised the proposition that dehydration was a possible cause of the elevated Cobalt reading. It is said for the Appellant, that the possible or probable explanation of the elevated Cobalt readings, was in the feed administered to the horse, there was no culpability and that there should thus be no penalty imposed beyond disqualification and the loss of the stake money. That is a wholly unrealistic submission and there is no authority for that course having been adopted on any previous occasion.

3.2 It is said for Mr Yesberg, that the starting point adopted by the Adjudicative Committee was excessive. The submissions point to the breaches in McKenzie v RIU (2002). On each of the two breaches in that case, a fine of $6,000 was imposed. The submissions contain reference to other decisions where fines have been imposed. Reference RIB v Pringle (2024). That decision is of no assistance.

3.3 The RIB’s submissions point out that none of the cases referred to in the submissions from Mr Yesberg involved a second presentation offence and further, that the Pringle case involved Greyhound Racing, where there is a lower maximum penalty under the Greyhound NZ Rules.

3.4 The submissions for Mr Yesberg contend that there should have been no uplift applied for the previous breaches. The Adjudicative Committee rightly noted that there were in fact two previous breaches, although it chose to treat those as a single breach. This, because the breaches had arisen from “one course of conduct and the same fact situation…”. It would have been open to the Committee to treat the two breaches as separate and that would have almost certainly resulted in a greater uplift.

3.5 Mr Yesberg submits that the discount for his admission of the breaches was inadequate. Submissions point to his cooperation with investigating authorities following the positive test and to his plea of guilty. It is said that the delay in his admission of guilt, was a result of his genuine and reasonable attempt to fully understand the cause of the elevated Cobalt reading and obtain advice in relation to that.

3.6 The submissions for Mr Yesberg propose in summary, that there should be no penalty other than disqualification and loss of stake money. The submissions then go on to propose that if no penalty is imposed, the starting adopted by the Adjudicative Committee was too high and that there was too great an uplift for the previous breaches and further, no adequate discount for the admissions. Those submissions result in a proposition that there should be a starting point of $6,000, a discount of 20% with regard to Mr Yesberg’s cooperation and admission and thus, a final penalty of $4,800.

3.7 In the Notice of Appeal, Mr Yesberg sought suppression of the decision of the Adjudicative Committee. No submissions were advanced in support of that application, other than to say that Mr Yesberg’s mental health had been compromised due to what are said to have been inflammatory statements made by the Adjudicative Committee. This issue will be addressed later in this decision.

4. THE POSITION OF THE RIB

4.1 As to the level of Cobalt and the relationship to the food that the horse had consumed, it is pointed out that Dr Major’s opinion appeared to be premised on the belief that the urine sample was heavily concentrated. How the Cobalt level came about, is not something which the Adjudicative Committee had to definitively determine. The Adjudicative Committee, nowhere in its decision, suggested that there was any wilful wrongdoing by Mr Yesberg.

4.2 As to the starting point for fixing penalty, the RIB’s submissions point to the Guide dated 1st February 2023, which provides for a starting point of $8,000 for a first presentation offence and a starting point of up to $20,000 for a second offence.

4.3 Mr Yesberg was treated as a first offender. There could have been a further greater uplift to reflect the previous breach.

4.4 As to the discount of $1,000, it is said for the RIB that this was appropriate. Mr Yesberg’s position in the written submissions he made on penalty, denied any responsibility for the breach. He said he should not be penalised and the RIB points out that he continues to maintain that position. In the Tribunal’s view, a significant discount must reflect a genuine acknowledgement of culpability. That has not happened here.

5. SUPPRESSION REQUEST

5.1 In the Minute of the Tribunal dated the 24th of April, the request for suppression was granted until the hearing and determination of the appeal. As noted earlier in this decision, no evidence has been put forward. There are no medical reports. There is an assertion in the submissions from Mr Yesberg, that his mental health has suffered, but there is no material that supports that position.

5.2 The Tribunal is of the view that the suppression request relates to the addendum to the decision of the Adjudicative Committee. That references what are said to be misguided and intemperate statements made by Mr Yesberg. Those are detailed in the decision of the Adjudicative Committee. Further, and importantly at para 33, the Committee records that the penalty level has not in any way been fixed or altered to reflect Mr Yesberg’s conduct.

5.3 The RIB opposes the suppression request and points to the relevant Rules which provide that all Tribunal decisions shall be published on the RIB Website unless the Tribunal directs otherwise.

5.4 There is reference in the submissions for Mr Yesberg to the decision in Wigg. It is not explained how that decision may assist Mr Yesberg’s request for suppression.

5.5 In the Tribunal’s view, the Adjudicative Committee was perfectly entitled to add the addendum to its decision. As noted, that addendum sets out in some detail, the objectionable claims made and remarks of Mr Yesberg.

5.6 Throughout these proceedings there has, in the Tribunal’s view, been a lack of realism by Mr Yesberg. He has adopted in large part, an aggressive attitude asserting no wrongdoing. This, notwithstanding the guilty plea. His attitude is demonstrated by his response to receipt of the submissions from the RIB on the 26th of May. Soon after those submissions were made available, Mr Paul Yesberg, who is the father of the Appellant, sent an email that is wholly inaccurate and unattractive. It said “corruption at its best”. On the 28th of May, Mr Paul Yesberg sent a further email which said “please refrain from publishing this decision as we seek a judicial review. We are not going to stand by and allow this level of corruption to occur in our industry”. Judicial review is only available after there is a decision and if that decision be disputed by the party who speaks of judicial review. The repeated reference to corruption is wholly inappropriate.

5.7 No grounds for suppression of the decision of the Adjudicative Committee have been made out and it is to be published in full.

6. CONCLUSION

6.1 The decision under appeal is comprehensive. The penalty arrived at is in line with the Penalty Guide and such decisions as might be comparable. As to whether or not Cobalt significantly affects the performance of a horse, that is not an issue which the Adjudicative Committee was required to determine. Proper consideration was given to the relevant factors to be taken into account, the plea of guilty, the previous offending, the cooperation with the investigating authorities, albeit that much of what was determined was put in issue.

6.2 It is not for the Appeals Tribunal to tinker with a penalty imposed by a Judicial Committee. The penalty can only be changed if it is demonstrated to be significantly in error. That has not been demonstrated here. The Tribunal is of the view that the penalty imposed was entirely appropriate. The appeal is dismissed.

7. COSTS

7.1 Both parties will please file submissions on the issue of costs – that to be made available to Gina Ward, Administration Specialist at the RIB, within 10 working days of the receipt of this decision. Such submissions not to exceed three pages.