Appeal – Written Reserved Decision dated 20 September 2024 – Robert Pringle

Background

1.  On 28 January 2024 and on 15 February 2024 the Appellant, was the Licenced Trainer of the Greyhound GRANDE VUE ACE which raced at Manukau Stadium and Addington Raceway respectively.

2.  Prior to the Manukau Stadium race and following the Addington Raceway race, GRANDE VUE ACE was swabbed and as a result of the swabbing process, the Appellant was charged with breaches of Rules 141(1)(a) and 141(4) of the Regulations of the New Zealand Greyhound Association Incorporated (“the Rules”). These Rules include:

“(1)     The trainer or other person in charge of a greyhound, …

(a)       nominated to compete in an event, …

            must present the greyhound free of any Prohibited Substance.

(4)       A greyhound presented for an event in circumstances where subrule (1) of this rule has been breached, must be disqualified from the event and from receiving any benefit derived from the relevant trial, test or examination.”

3.  Following the first event, Eurofins (“ELS”) issued an Analytical Screening Report detailing a Cobalt level of 290 micrograms per litre of urine. This report was received by the Respondent on 13 February 2024. The subsample and control was sent to Racing Analytical Services Limited (“RASL”) for testing.

4.  On 27 February 2024, RASL confirmed a Cobalt level had been detected at a level greater than 200 ug/ml, being the upper limit of the calibration range used. This certificate was in relation to the swab taken on 28 January 2024.

5.  On 2 March 2024, ELS issued an Analytical Report, detailing the sample taken from GRANDE VUE ACE following its race on 15 February 2024, screened a Cobalt level of 189 micrograms per litre of urine.

6.  On 14 March 2024, RASL issued a Certificate of Analysis in respect of the swab taken following the Addington Raceway race, stating that Cobalt had been detected at a level greater than 200 ug/ml. Again, being the upper limit of the calibration range.

7.  By a Decision dated 17 July 2024, the Adjudicative Committee disqualified GRANDE VUE ACE from both relevant events in accordance with Rule 141(4), as they were obligated to do.

8.  The Appellant pleaded guilty to two (2) charges, and the Adjudicative Committee, after hearing submissions from the Appellant, imposed a fine of $7,000 in respect of the two (2) charges.

9.  The Appellant now appeals the penalty that was imposed by the Adjudicative Committee.

10.  This Appeal is being conducted pursuant to Rule 173(F) of the Rules and also Rule 173(G) of the Rules.

11.  Rule 173G(2) reads:

“In the case of an appeal against penalty, the Appeals Tribunal may;

(a)  Confirm the penalty and dismiss the appeal;

(b)  If the penalty (either in whole or in part) is one which the body imposing it has no jurisdiction to impose or is one which is manifestly excessive or inadequate or inappropriate:

(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 think ought to have been imposed or deal with the Appellant in any other way that the Adjudicative Committee could have dealt with the Appellant in finding the information proved; or …”

Appellant’s Submissions

12.  Counsel for the Appellant filed written submissions dated 29 August 2024.

13.  The Appeal is on two (2) grounds, being:

a.  The Appellant says the Racing Integrity Board (“RIB”) had an obligation to provide to the Appellant, the results from the pre-race swab conducted on GRANDE VUE ACE on 28 January 2024, before GRANDE VUE ACE raced for a second time on 15 February 2024; and

b.  The Appellant says the RIB had a duty under the Rules to scratch GRANDE VUE ACE on 15 February 2024, as it knew at that time, of the positive test for a Prohibited Substance arising from the pre-race swab taken on 28 January 2024.

14.  The Appellant places great emphasis on the dates of receipt of the test taken following the race on 28 January 2024. He says the Respondent received the results of the test on 13 February 2024, being two days prior to GRANDE VUE ACE racing on Addington Raceway on 15 February 2024.

15.  That being the case, it was submitted that the Respondent was duty bound to advise the Appellant of the results of that test in order to give the Appellant the opportunity to scratch GRANDE VUE ACE from its race on 15 February 2024 and in any event, the Respondent was duty bound to also scratch GRANDE VUE ACE from the race on 15 February 2024.

16.  This obligation on the RIB, it is submitted, arises from Rule 139, that states:

 “4.      If upon analysis a sample has detected in it a Permanently Banned  Prohibited Substance… ;

(a)  The greyhound must be scratched from any event which it is nominated or engaged to compete in; and

 (b)  Without limiting the application of rule 169(5), the greyhound is ineligible to be nominated for any further event until a sample is taken that does not breach this rule.”

17.  The Appellant submits he was not advised of the results of the swabbing and therefore, was not in a position to scratch from the race on 15 February 2024. It is submitted the Respondent was aware of that outcome and should have acted accordingly.

18.  This inaction of the RIB, resulted in an outcome which is contrary to the interests of all participants in the Industry, including the betting public.

19.  It is further submitted that as the Respondent was aware of the outcome of the swab, but the Appellant was not aware of that outcome by 15 February 2024, then the Appellant should not have a penalty imposed on him for that breach.

20.  The submissions further reference the now well-known sentencing Decision of RIU v L, which details guidance to be adopted by relevant authorities when considering penalties to be imposed. For the purposes of completeness, we should repeat the two paragraphs which have been detailed in the Appellant’s written submissions. These are:

“(25)  Proceedings under (the relevant rules) 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.

(28)  Of course Tribunals are required to consider all available sanctions starting with the lowest; and a sanction must be sufficient but no more than is necessary to achieve its purpose. The Tribunal must endeavour to reach a proportionate balance between:

• the public interest
• the interests of the offending member
• the interests of the professional body as a whole
• the seriousness of the offending
• any aggravating and mitigating factors.”

21.  The submissions contain reference to penalties having regard to the public interest, particularly in the area of animal welfare. There are cases which have been cited (and which members of this Tribunal are familiar with), which refer to the increasing standards of animal welfare being an integral part of the Industry as a whole, in order to maintain its social licence to operate.

22.  Having regard to the matters of public interest, it is submitted there should not be a penalty imposed in respect of the race on 15 February 2024 given, the Appellant was not advised within a timely manner, of the outcome of the swab of the race on 28 January 2024.

23.  There are also a number of references to penalties which have been imposed in all three (3) Codes relating to Prohibited Substances.

24.  There is also reference to the aggravating and mitigating factors, which the Adjudicative Committee considered when issuing their Penalty Decision.

25.  It is therefore the Appellant’s submission, the quantum of the penalty imposed by the Adjudicative Committee is excessive and should be significantly reduced to a fine of $3,000.

Respondent’s Submissions

26.  The Respondent has filed written submissions dated 5 September 2024.

27.  Not surprisingly, the Respondent rejects the submissions made by the Appellant.

28.  In response to the submission by the Appellant that the Respondent had a duty to inform the Appellant of the ELS result taken from the race on 28 January 2024 and received by the Respondent on 13 February 2024, the Respondent submits the purpose of the sub-samples being sent to ELS is for screening purposes only. ELS are not engaged for confirmatory analysis and therefore they do not issue a Certificate of Analysis.

29.  The purpose of the testing by ELS is simply to confirm whether or not any sample may result in a suspect result. It is therefore the Respondent’s submission, there is no obligation under the Rules to advise connections of a Greyhound, of the results of a screening by ELS. The obligation to advise can only arise once the Certificate of Analysis is received and this was subsequent to the race on 15 February 2024.

30.  There is a further submission by the Respondent in relation to the categorisation of Cobalt.

31.  The Respondent submits the Adjudicative Committee was correct to accept the evidence of Dr Steven Karamatic and in particular, where he seeks to distinguish between a Prohibited Substance and a Permanently Banned Prohibited Substance. The evidence of Dr Karamatic was:

“In my opinion cobalt in a urine sample is a prohibited substance when present in that urine in a concentration greater than 100 ng/ml, however cobalt in a urine sample should only be considered a permanently banned prohibited substance when present in that urine in a significantly greater concentration (e.g. greater than 1,000 ng/ml) or when other evidence exists such as the use or suspected use of non-registered highly concentrated cobalt salts.”

32.  It is also submitted on behalf of the Respondent, that having regard to further evidence of Dr Karamatic, the Adjudicative Committee was correct to accept Cobalt in a urine sample would more closely align to Category 4, in terms of the categories of Prohibited Substances of Greyhound Racing New Zealand’s Penalty Guidelines. Therefore, in the submission of the Respondent, the Adjudicative Committee correctly adopted, as a starting point, the Penalty Guideline under that category.

33.  The submission goes on to further state, the Appellant had not been charged with presenting GRANDE VUE ACE with a Permanently Banned Prohibited Substance under Rule 139, but rather with a Prohibited Substance. Again and on that basis, there was no obligation on the Respondent to scratch GRANDE VUE ACE pursuant to Rule 141(a).

34.  In terms of the Rules, the Appellant was charged with the “Presentation” Rule as opposed to the “Administration” Rule. The obligation therefore rests solely on the Trainer to ensure GRANDE VUE ACE raced free of any Prohibited Substances. There is agreement with the Adjudicative Committee accepting the Appellant was guilty of a high degree of carelessness leading up to both races, in that the evidence pointed to the use or misuse of the Ironvita Blood & Oxygen product as the likely cause.

35.  The Respondent referred the Tribunal to not only the previous Decisions which had been referenced by the Appellant, but also particularly the case of RIU v Caskey, as being the most similar in factual situation to these matters involving the Appellant.

36.  The Decision involving Mr Caskey was dated 1 October 2018 and involved the mixing of a liquid supplement into the horse’s feed each morning – including the morning of the race. The supplement was labelled as containing 54 mg per litre. The horse returned a Cobalt level of 375ug/l. The charge was admitted and, on that occasion, the (then) Judicial Committee adopted a starting point of $8,000 as being in line with the mid-range of the (then) Penalty Guide.

37.  The Committee noted:

“There was a responsibility on Mr Caskey to have a clear understanding of all the supplements and products he was giving the horse. He did not have this understanding and this is relevant when determining the degree of culpability.”

38.  On this basis, the Respondent submits the Appeal as to penalty on both grounds should be dismissed and that the further fine of $7,000 imposed by the Adjudicative Committee, was not manifestly excessive.

Discussion

39.  The Tribunal has received both written and oral submissions from both the Appellant and the Respondent. These submissions were detailed and carefully put together and were most helpful.

40.  The Appeal has been conducted in accordance with the Common Rules of Practice and Procedure for the Appeals Tribunal contained in a Schedule to the Rules.

41.  The Appeal is determined by way of a rehearing and although written submissions were received, the Appeal was conducted by Teams meeting.

42.  In determining the Appeal, the Tribunal is conscious that it is necessary for us to be satisfied that penalty imposed by the Adjudicative Committee was manifestly excessive. The Rule which determines that standard is set out in paragraph 11 of this Decision. The words “manifestly excessive” mean “it is clearly or obviously unreasonable”.

43.  Ms Thomas expanded on her written submissions and forcefully argued there was a responsibility on the RIB to advise the Appellant of the screening results as soon as they were received by the RIB on 13 February 2024. This would have inevitably resulted in GRANDE VUE ACE being scratched from the race she won on 15 February 2024, where she also returned a positive swab to Cobalt.

44.  There is no complaint regarding the first charge relating to the race on 28 January 2024. She acknowledged GRANDE VUE ACE tested positive to Cobalt on that occasion and as a strict liability offence under the Rule, it would have been difficult to defend.

45.  The Appeal centres around the alleged lack of action by the RIB, in advising the Appellant of the results of the screening test.

46.  Counsel for the Appellant further stated, this lack of action by the RIB, goes to the very heart of the Industry, in that the betting public were let down by this inaction.

47.  It was submitted the obligation to inform the Appellant arises under Rule 154(6), although it was argued by the Respondent, this obligation only arises on receipt of a certificate from an approved laboratory.

48.  Ms Thomas could not understand why the RIB would not inform a Trainer of the result of the screening test in these circumstances. This, it was alleged, is necessary in order to protect the integrity of the Industry and the betting public.

49.  We did discuss and questioned Ms Thomas as to whether Rule 139 had any implication to these circumstances as that Rule applies to “Permanently Banned Prohibited Substances” and not “Prohibited Substances” which is dealt with under Rule 141.

50.  Ms Thomas did not take that argument any further and instead used words such as;

• “impliedly”
• “common sense”
• “sensible”

In order to suggest there was an implied obligation on the RIB to advise any Licenced Trainer, the outcome of any swab procedures, which may have been carried out on a race night.

51.  Mr Irving on behalf of the Respondent, argued there is nothing in the Rules which requires the RIB to advise the result of a screening test. The screening test is to detect the presence (if any) of metals, such as Cobalt and Arsenic only and the proper testing procedures were not received until later. There was no time to advise the Appellant of the result of the screening test prior to the race on 15 February 2024 and in the submission of the Appellant, a “heads-up” phone call would have sufficed. Mr Irving advised it was not RIB investigative procedure to commence investigations by way of a phone call. There was always an onsite visit.

52.  We agree with the submission of the RIB that Rule 139 does not apply. This Rule has application to Permanently Banned Prohibited Substances and the evidence given before the Adjudicative Committee by Dr Steven Karamatic, confirms the presence of Cobalt will only come within this Rule, where there is present in the urine, a significantly greater concentration than 1,000 ng/ml of urine. This was not the case here.

53.  We do not agree with Counsel for the Appellant, there can be any implied obligation on the RIB to advise the outcome of the screening test. These results were a screening mechanism only, in relation to a race which was conducted on 28 January 2024. The results were received by the RIB on 13 February 2024, being a period in excess of two (2) weeks following the event.

54.  Mr Irving indicated Cobalt starts to reduce from the body of the animal from a period of approximately four (4) hours following the animal coming into contact with Cobalt. This would appear to be the reason for the introduction in both Equine Codes of the One Clear Day Rule.

55.  We do not think it was realistic to expect the results from two weeks previously, to create any obligation on the RIB to intervene in respect of a race on 15 February 2024.

56.  The obligation clearly rests under Rule 141, on a Trainer or other person in charge of a Greyhound, to present a Greyhound free of a Prohibited Substance. That is a strict liability offence. The Appellant pleaded guilty to both charges. It would have been futile to endeavour to defend such a strict liability scenario.

57.  The Decision by the Adjudicative Committee was comprehensive and considered. They considered Cobalt comes within a Category 4 heading, for the purposes of determining a starting point. Ms Thomas was of the view, this situation should have been dealt with under Category 5. This is because in her view, Cobalt does not have any evidence to support its value as a performance enhancing substance and given the absence of any animal welfare issues, it should have been treated as a Category 5 substance.

58.  However, the evidence given before the Adjudicative Committee in relation to this point, suggested the correct categorisation of Cobalt was Category 4. This was adopted by the Adjudicative Committee, and we agree with that.

59.  Whilst acknowledging there could be no complaint with the manner in which the RIB dealt with the first charge, the Appeal endeavours to deflect some responsibility on the second charge to the RIB.

60.  Even though the Adjudicative Committee stated it was unlikely the exact cause could be determined, we can not however, escape the provisions of Rule 141, which impose a clear obligation on the Trainer or person in charge of the Greyhound, to present the Greyhound free of any Prohibited Substance. As it is a strict liability offence, we do not agree this responsibility can be sheeted to the regulatory authority.

61.  The starting point for a penalty for a Category 4 breach is a six (6) month disqualification and/or a $5,000 fine.

62.  The Adjudicative Committee considered there was an aggravating factor, as there was a high degree of carelessness on the part of the Appellant. In recognition of that aggravating factor, they applied an uplift to a $6,000 fine.

63.  There were also a number of mitigating factors. These included:

• The Appellant’s excellent history in the Industry spanning some 30 years;
• His admission of the charges, although as we have indicated, to do otherwise would have been futile;
• A concern his integrity would be wrongly accessed and be considered as dishonest and a cheat. Nothing could be further from the truth in this regard. The charge was one of “presentation” and not “administration”.

64.  The Adjudicative Committee noted these mitigating factors and reduced a starting point by $1,000, to return to the original starting point of a $5,000 fine.

65.  When coupled together, they considered a total fine in respect of the two (2) charges of $10,000 to be excessive and so applied a 30% discount, to arrive at a fine of $7,000, which was imposed in respect of the two charges.

66.  We do not agree with the submission by the Appellant, that the second charge should have no penalty applied. We have rejected the submissions the RIB was in any way responsible for the positive swab and therefore, we agree with the Adjudicative Committee, that the two charges should be treated in the same manner.

67. For us to allow the Appeal, we would have to be satisfied that the fine imposed by the Adjudicative Committee was manifestly excessive.

68.  We consider that the Adjudicative Committee gave careful consideration to the methodology adopted in determining the final penalty and we cannot find fault with the manner in which they have carried out that exercise.

Decision

69.  The Appeal is therefore dismissed.

70.  If either party wishes to make any submissions in relation to costs, then they should direct those submissions to the Executive Officer, Racing Integrity Board, Wellington, within one (1) week of the date of this Decision.