Non Raceday Inquiry – Decision dated 3 April 2023 – Chloe Watson

Introduction

[1] This is the Penalty Decision arising from the charge filed against Licensed Greyhound Trainer Ms Chloe Watson (the “Respondent”). The Respondent is the Trainer of TEEING OFF who finished third in Race 7 at the Auckland Greyhound Meeting, held at Cambridge, on 28 November 2022. Following a post-race drug test, TEEING OFF returned a positive test result for the Prohibited Substance, Arsenic.

[2] At the hearing before an Adjudicative Committee at the Manukau Greyhound Stadium on 2 April 2023, the Respondent admitted a charge alleging that she presented TEEING OFF to race in the said race free of a Prohibited Substance (Arsenic). The Respondent was supported and assisted at the hearing by her aunt, Licensed Trainer Ms Hayley Mullane.

Penalty

[3] After evaluating the evidence and submissions, the Respondent was fined $1000. The reasons for imposing the fine are outlined in the body of this Written Decision.

The Charge

[4] Full particulars of the charge (as per Information Number 17802) are that on 28 November 2022, at the Auckland Greyhound Meeting conducted at the Cambridge GR Track, TEEING OFF competed in Race 7, the Garrards Horse and Hound Sprint and finished in third place. Prior to Race 7 a pre-race sample was obtained from the Greyhound which, upon analysis, returned a positive test result for the Prohibited Substance, Arsenic, at a level of 1158ng/mL, being over the threshold of 800ng/mL and as a consequence:

The Respondent failed to present the Greyhound free of the Prohibited Substance, Arsenic, at a level of 1158ng/mL, being over the threshold of 800ng/mL, being an offence under the provisions of Rule 61.1 and punishable pursuant to Rule 63.1 of the New Zealand Greyhound Racing Association Rules.

The Rules

Rule 61.1 provides that:

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.

Rule 61.4 provides that:

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

Rule 63.1 establishes the Penalty Provisions:

Any Person found guilty of an Offence under these Rules shall be liable to: (a) a fine not exceeding $10,000.00 for any one (1) Offence except a luring/baiting Offence under Rule 86; and/or (b) Suspension; and/or (c) Disqualification; and/or (d) Warning Off

Background Information

[5] Following a Request for a Ruling, which was published on the RIB website on 26 January 2023,the Adjudicative Committee made the following Rulings:

(a) that TEEING OFF shall be disqualified from its third placing in Race 7 at the Auckland Greyhound Meeting conducted at the Cambridge GR Track, on 28 November 2022; and

(b) that the $290 stakes earned for finishing in third place is to be forfeited and the official race results / placing are to be amended in accordance with the decision to disqualify TEEING OFF.

Summary of Facts

The key salient facts are summarised are as follows:

[6] The Respondent, is the holder of a Trainer’s License issued by GRNZ. She currently owns / trains four Greyhounds, including TEEING OFF, which are kennelled at a training facility situated in Clevedon.

[7] On Monday 28 November 2022, TEEING OFF was entered to run in Race 7 at the Auckland Greyhound Racing Club Meeting held at the Cambridge GR Track. Prior to the running of the race, Stewards advised the Respondent via phone that TEEING OFF had returned a high Arsenic reading of 303ng/mL from a swab obtained on 6 November 2023. She was further advised that the Arsenic threshold was 800ng/mL.

[8] A pre-race swab was obtained from TEEING OFF, by an RIB Swabbing Official.

[9] Following the swab, TEEING OFF competed in Race 7, finishing in third place, and earned gross stake money of $290.

Analysis Result

[10] On Monday 9 January 2023, the Official Racing Analyst of the New Zealand Racing Laboratory Services (NZRLS) advised the Racing Integrity Board (RIB) of the analysis result; namely the detection of the Prohibited Drug, Arsenic, at a level of 1158ng/mL, being over the threshold of 800ng/mL.

[11] Arsenic is a naturally occurring trace element that is normally present in Greyhounds at very low levels as a result of a normal dietary intake.

[12] An excessive amount of Arsenic has been shown to have an effect on the cardiovascular system (GAR 1) and therefore is a Prohibited Substance when present in a sample at concentrations above that which would naturally occur through routine nutritional sources. Arsenic at a level over 800ng/mL is a Prohibited Substance within the meaning of the Rules and its presence in a race day sample at levels exceeding the threshold is, prima facie, a breach of the Rules.

Investigative Follow-up

[13] On Wednesday the 11 January 2023, RIB Investigators attended at the Respondent’s training facility and commenced an investigation into the high Arsenic reading.

[14] Upon being spoken to, the Respondent was shocked to hear of the positive result, advising that the only thing she could contribute to the high readings was the recent staining of the wooden floor in her dog kennels following an RIB Kennel Audit and the subsequent ‘licking’ of the wood by the dog in question.

[15] The Respondent further advised that this was completed in late September 2022 to ensure that the kennels complied with current Greyhound Racing New Zealand (GRNZ) standards.

[16] The kennels were purchased in early 2022 and are constructed from treated timber and corrugated iron material.

[17] In 2022, the Australian Greyhound Welfare and Integrity Commission published an article linking Copper Chrome Arsenate (CCA) treated timber to Arsenic threshold breaches.

This article states ….“CCA is a wood preservative used to treat timber against rot and pests. Licking or chewing of kennels or yards with treated timber has been implicated in threshold breaches. CCA is dangerous because it contains Arsenic, a known human carcinogen. Over time, the Arsenic can leak out from inside the wood into the surrounding soil and onto the surface of the wood. From the surface, the Arsenic can be picked up on the paws of passing pets, who later ingest it”.

[18] The RIB Official Racing Analyst, from the NZRLS has advised that the CCA used to treat the wood can leach from the wood and can be ingested by the dogs orally, leading to high Arsenic readings. In addition, advice was given suggesting that previous threshold breaches have been caused by kelp and shellfish ingredients present in the dog’s food source. Further, the effects of Arsenic in a Greyhound, would largely act as a stopper as opposed to being performance enhancing.

[19] With this information in mind, RIB Investigators have arranged for further exhibit analysis to determine the source of the Arsenic. These samples underwent ‘Timber Preservative Treatment Testing’ conducted by IVS Laboratories to ascertain the level of Arsenic present in the timber. At the conclusion of the testing, the Arsenic Retention Analysis returned levels of 0.260, meeting the minimum retention requirements of the specifications for H 3.2 CCA treated timber in final size/shape/form for use in New Zealand as per NZS 3640:2003.

[20] Upon speaking to the IVS Laboratory Operations Manager, RIB were advised “The levels found in the wood are typical for H 3.2 treated timber and are not considered particularly high for this treatment type, it is lower than H4 or any other CCA treatment or hazard class”.

[21] No other sources of Arsenic were located whilst at the training facility of the Respondent.

Conclusion

[22] Despite extensive enquiries to locate the source of the Arsenic, RIB Investigators were unable to ascertain the direct cause of the threshold breach.

[23] The Respondent has been charged under Rule 61.1 of the GRNZ Rules, a strict liability offence. The Respondent therefore must ensure that her registered Greyhounds are free from Prohibited Substances at all times.

[24] The Respondent is 18 years of age and has no previous charges under the Rules of Greyhound Racing New Zealand.

Penalty Submissions – Applicant

The Applicant provided the following written submissions:

[25] The Respondent, is aged 18 years old and only recently (March 2022) she became a Licensed Owner/Trainer. She has been involved in the Industry for several years, having been introduced to the sport through her family.

[26] At the time of the breach, she owned four Greyhounds which were kennelled and trained from a Clevedon address which she shares with her aunt.

Offending

[27] The details of the Respondent’s offending are contained in the Summary of Facts.

Penalty Provisions

[28] Of note on the 1 February 2023 GRNZ introduced the ‘New GRNZ Rules of Racing’. As this offence was committed prior to the commencement of the new Rules, the Respondent has been charged under the Rules that were in force at the time of the offence (r 61.1).

Sentencing Principles

[29] The RIB submits that the principles of sentencing relevant to this charge can be summarised as follows:

• Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence, but the offender must be met with a punishment.
• In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.
• A penalty should also reflect the disapproval of the Adjudicative Committee for the type of offending in question.
• The need to rehabilitate the offender should be considered.

[30] It is submitted that the first three principles are particularly important in this matter.

Prohibited Substance Thresholds – Arsenic

[31] On the 1st of October 2021, GRNZ introduced an amendment to the definition of “Prohibited Substance”. This amendment was introduced to create thresholds for several Prohibited Substances and included the substance Arsenic as below:

(iv) Arsenic at or below a mass concentration of 800 nanograms per millilitre in a Sample of urine taken from a Greyhound will not breach the provisions of subrule (d) of this definition.

[32] Arsenic is a naturally occurring trace element that is normally present in Greyhounds at very low levels as a result of a normal dietary intake and environmental exposure.

[33] An excessive amount of Arsenic has been shown to have an effect on the cardiovascular system (GAR 1) and therefore is a Prohibited Substance when present in a sample at concentrations above that which would naturally occur through routine nutritional sources.

[34] During the 2022/23 Greyhound Racing New Zealand season there have been 241 samples analysed for Arsenic with an average level of 59ng/mL.

[35] Arsenic at a level over 800ng/mL is a Prohibited Substance within the meaning of the Rules and its presence in a race day sample at levels exceeding the permitted threshold.

[36] At present, there are no previous breaches of this Rule within Greyhound Racing New Zealand however, there have been several recent cases in Australia relating to a breach of the Arsenic threshold.

Relevant Precedents

[37] In addition to the sentencing principles, the RIB submits that the Adjudicative Committee should have regard to relevant Greyhound Racing Victoria precedents as below:

Victorian Racing Tribunal v S Evans (6/10/2022)

[38] On 25 February 2022, Greyhound Racing Victoria Licenced Trainer, Stacey Evans, failed to present the Greyhound ‘EVAN’S ALMIGHTY’, free of any Prohibited Substance, namely Arsenic at a level above the prescribed threshold of 800ng/mL.

[39] The source of the high Arsenic level in the Greyhound was believed to be Copper Chrome Arsenate (CCA) treated pine timber posts that were located within the dog’s kennelling area. These posts had been chewed and licked by the dog in question.

[40] Ms Evans had no prior convictions and once made aware of the situation, made a number of changes to the kennel facilities to ensure that the dogs were no longer able to chew the treated timber.

Penalty

[41] Ms Evans received a six-month suspension, but the penalty was in turn wholly suspended for a period of 12 months. If a second relevant offence were to occur during the 12-month period, the six-month suspension would be activated. Further to the above, the Greyhound in question, ‘EVAN’S ALMIGHTY’, was disqualified from the race and the finishing order amended accordingly.

Victorian Racing Tribunal v C Smith (13/09/2022)

[42] On 6 January 2022 Greyhound Racing Victoria Licenced Trainer, Clifford Smith, failed to present the Greyhound ‘MISSILE EDITION’, free of any Prohibited Substance, namely Arsenic at a level above the prescribed threshold of 800ng/mL (Result – Over 1600ng/mL).

[43] The source of the high Arsenic level in the Greyhound was believed to be Copper Chrome Arsenate (CCA) treated timber. The Greyhound, MISSILE EDITION was known to be a chewer who chewed the posts in her kennel and emptying out areas.

[44] Further to this, Mr Smith was also charged with presenting a second Greyhound with the Prohibited Substance Theobromine, a metabolite of Caffeine, from a positive swab on 23 November 2021.

[45] Mr Smith had one previous conviction from five years prior, for presenting a Greyhound with the Prohibited Substances Morphine and Codeine.

Penalty

[46] In relation to the Arsenic charge, Mr Smith received a six-month suspension, with three months suspended for a period of 24 months. On the second charge relating to the Theobromine, Mr Smith received a six-month suspension, with three months suspended for a period of 24 months, with both penalties to be served concurrently.

[47] In addition, both Greyhounds were disqualified from their respective races and the finishing orders amended accordingly.

Victorian Racing Tribunal v C Kerr (24/08/2022)

[48] On 10 February 2022, Greyhound Racing Victoria Licenced Trainer, Ms Kerr, failed to present the Greyhound JUST SAYING, free of any Prohibited Substance, namely Arsenic at a level above the prescribed threshold of 800ng/mL (Result – Over 1600ng/mL).

[49] The source of the high Arsenic level in the Greyhound was believed to be Copper Chrome Arsenate (CCA) treated timber. The property in which the Greyhound was housed had previously been the location of a second Trainer who had received a positive swab for Arsenic. Ms Kerr was aware of this previous positive result.

Penalty

[50] Ms Kerr received a six-month suspension, with five months suspended for a period of 12 months pending no further breach of GAR 83(2) in that time. In addition to this, the Greyhound, ‘JUST SAYING’ was disqualified from the race and the finishing order amended accordingly.

Victorian Racing Tribunal v D Douch (27/07/2022)

[51] On the 3 December 2021, Greyhound Racing Victoria Licenced Trainer, Mr Douch, failed to present the Greyhound THREE WISHES, free of any Prohibited Substance, namely Arsenic at a level above the prescribed threshold of 800ng/mL.

[52] The source of the high Arsenic level in the Greyhound was believed to be either Copper Chrome Arsenate (CCA) treated timber which had been licked by the Greyhound or Arsenic contaminated soil.

[53] Mr Douch had one previous conviction in April 2020 for presenting a Greyhound with the Prohibited Substance Dehydronorketamine, a metabolite of Ketamine.

Penalty

[54] Mr Douch received a six-month suspension, with four months of that suspension suspended for a period of 12 months. In addition to this, the Greyhound, THREE WISHES was disqualified from the race and the finishing order amended accordingly.

Aggravating Features

[55] The Respondent understands that Arsenic at a level over 800ng/mL is a Prohibited Substance within the meaning of the Rules.

[56] Further to this, she was aware that the Greyhound TEEING OFF had an elevated Arsenic level (300ng/mL) in its system prior to being swabbed on the 28 November 2022.

Mitigating Features

[57] The Respondent entered an early guilty plea and has been compliant, cooperative, and respectful with all RIB staff throughout the process.

[58] Upon learning of the positive result, she immediately removed her Greyhounds from their kennels and moved them to temporary housing to ensure that the risk of exposure to further Arsenic was reduced.

[59] Although only receiving her Trainer’s Licence in the last year, the Respondent has been involved in the Greyhound Industry for several years, assisting her family who have long been involved in Greyhound Racing. Upon receiving her Licence, she worked a number of jobs to purchase four brand new kennels in which to house her dogs. These kennels were purchased from a reputable seller, and she was not aware that the timber used was treated with Copper Chromium Arsenate (CCA), which contains Arsenic.

[60] The Respondent has since made modifications to her kennels which include installing matting to ensure that the Greyhounds are unable to chew or lick the CCA treated timber at the front of the kennels.

[61] TEEING OFF has subsequently been disqualified from the race in question. The Respondent consented to this disqualification.

[62] The Respondent has no prior charges under the Rules of Greyhound Racing New Zealand.

Conclusion

[63] Although it is difficult to ascertain the direct cause of the high Arsenic levels, it is the belief of the RIB that the most likely source of the threshold breach is from the Copper Chromium Arsenate (CCA) treated timber located in the kennel in which TEEING OFF was housed.

[64] As the Trainer, the Respondent has a strict liability to ensure that her Registered Greyhounds are free from Prohibited Substances at all times.

[65] As this case is the first of its kind in New Zealand relating to a breach of the Arsenic threshold, the RIB believes it is therefore relevant to refer to the penalties received for similar offending in Australia.

[66] It is submitted that the offending in this case is most similar to that of Victorian Racing Tribunal v S Evans (6/10/2022) in that there was a breach of the Arsenic threshold by a Trainer who had no previous convictions.

[67] As this charge arises from the Rules that pre-date the introduction of the new and revised NZGR Rule (as of 1 February 2023), the penalty to be imposed must be consistent with the Rules in place at the time of the breach. However, The RIB suggests that (under the new Rules) they would have submitted a penalty with a starting point of six-months suspension, with the penalty wholly suspended for a period of 12 months.

[68] Nil costs are sought by the RIB.

Penalty Submissions – Respondent

[69] The Respondent provided written submissions which she summarises orally at the hearing; namely she submits that:

TEEING OFF has been one of the 4-5 dogs that have been in my name since I received my trainer’s licence. Along with BAILIFF BAILEY, ADOBE SLICE, EYE SPY LILLIE and WHO IS COOPER (no longer in my kennels). Note no other dogs returned a “high” Arsenic reading.

Arsenic “high” was returned on 28 November which was taken on 6 November.

Arsenic “positive” was returned at 1158ng/ML on 9 January from the swab taken on 28 November. Noting a rough 1 ½ month gap between swabs.

Swab taken for TEEING OFF the following Sunday (while I asked for all 4 dogs which were housed in the kennel to be swabbed due to the assumption of the kennels being the cause of Arsenic poisoning in TEEING OFF).

TEEING OFF returned a lower/under the threshold swab after only being removed from the kennels for 3-4 days.

Inorganic Arsenic (wood, wood stains, soil etc.) could remain in the body for several months or even longer.

When provided the Arsenic test results it was clear the Arsenic in TEEING OFF’s system was not given/provided by me or the property which I train off.

The wood which was used on my kennels indeed was treated with Copper Chromium Arsenate (CCA) it was advised to me when I was presented with the test results that there is a low possibility in which TEEING OFF would have such a high reading from this when he occasionally licks.

TEEING OFF does not/never has chewed wood. This again supports the fact there is a low chance of the wood being the cause of such a high Arsenic reading.

Results showed nothing other than the wood treatment coming back with any Arsenic readings.

Stain was over the Copper Chromium Arsenate (CCA). Meaning there was a layer at which TEEING OFF would have been licking covering the Arsenic the RIB have assumed to cause the high level.

The main point is there hasn’t been any cases in NZ similar to mine and that alone made the process a little confusing as they don’t have much information to provide regarding his results. I would ask that the RIB is provided with a better understanding to help assist in any possible Arsenic cases they may have in the future to support the fact the Copper Chromium Arsenate (CCA) did not cause the high positive Arsenic reading that Arsenic can’t build up in the system. As Arsenic normally leaves the body through bodily waste/fluids this means there is no accumulation of Arsenic.

So how did TEEING OFF provide such a high Arsenic reading?

How I believe I should be penalised. I understand the rules in place which means I am responsible to present my dogs with no illegal substance in the system, in this case over the 800ng/ML level of Arsenic. As proof provided, I did not intend or even know where this Arsenic has come from. I believe due to this fact alone it should be considered under the new rules as my hearing is being done after a rule change and I should be given a warning. I also believe I was as cooperative as possible and patient when it came to this investigation.

Decision and Reasons

[70] Having evaluated the evidence, submissions and penalty options that are available under the Rules that were in place at the time of the breach, the Adjudicative Committee assessed the Respondent’s level of culpability to be at the lower end of the continuum and determined a fine to be the most appropriate penalty in the circumstances of this case.

[71] Based on the available evidence, it is more probable than not the high concentration of the Prohibited Substance, Arsenic, (at a level of 1158ng/mL), may have arisen from TEEING OFF licking wood in the kennel which had previously been treated with Copper Chromium Arsenate (CCA). No other reasonable cause has been advanced.

[72] This breach is categorised as a strict liability offence and, in that regard, it is not necessary to establish that the Respondent intended to breach the Rule. The evidence clearly points to the fact that there was no deliberate or intentional act or omission on her part that led to the breach. She was proactive in taking steps to ensure that her kennels were compliant with GRNZ standards following the RIB Kennel Audit which was carried out on her property last year. She went to some effort and expense to purchase four new kennels which were constructed in part from treated timber which may have been the source of the high Arsenic reading. She has also taken steps to minimise the risk of a further breach by making modifications to her kennels so that her Greyhounds are unable to chew or lick the CCA treated timber at the front of the kennels. For this, she deserves credit.

[73] The Adjudicative Committee has noted the Australian cases that were submitted by the RIB and agree that the case relating to Victorian Racing Tribunal v S Evans (6/10/2022) best matches the circumstances of this case. The only point of difference being that the penalty regime in Australia allowed for the sentence to be suspended. Whereas the penalties available to be imposed in New Zealand at the time of this breach, do not allow for a suspended sentence. GRNZ Rule 63.1 sets out the relevant penalty provisions which provide for either / or (a combination) of $10,000 fine, suspension, disqualification or warning off.

[74] This is the first case in New Zealand relating to a Greyhound that has been presented to race free of the Prohibited Substance, Arsenic, at a level over the threshold of 800ng/mL. It is also likely to be the last time a breach of this nature will be dealt with under the ‘old’ Rules and under the ‘previous’ penalty provisions. Therefore, as far as offences involving Arsenic are concerned, the penalty imposed in this case may have limited weight in terms of its precedent value.

Mitigating factors

[75] In assessing penalty, the Adjudicative Committee has given significant weight to a number of mitigating factors in favour of the Respondent. In addition to those factors highlighted by the RIB at paragraphs (57 to 62), others include:

a. The Respondent is aged 18 years. Her youth, together with her very limited experience are compelling mitigating factors.
b. She admitted the breach at the first available opportunity and has cooperated with the RIB at every step of the procedure.
c. She has accepted accountability, albeit and understandably, until it was fully explained to her, she struggled with the concept of strict liability, in the belief that she had done everything she could to prevent a breach of the type.
d. The circumstances of the breach are such that there is very limited likelihood of her re-offending.
e. She is in the early stages of a training career. She acknowledged that training, due to cost pressures is a hobby rather than vocation at the moment and she maintains two other jobs to support her hobby and has limited financial means.
f. On receiving advice from the RIB that her kennels needed to be upgraded, she was proactive in that she went to considerable expense and effort to purchase new kennels – which it now transpires may have been the source of the Arsenic.
g. There was no intent to deceive or benefit financially or otherwise, from the breach.
h. The Respondent’s dog, TEEING OFF has been disqualified.

[76] The new offence and penalty regime came into force on 1 February 2023. Both NZ and Australian Greyhound Rules and penalties are now aligned.

[77] Unfortunately for the Respondent, the hearing of this charge is caught between the phasing out of the ‘old’ and the introduction of the ‘new’. And as has already been highlighted in this decision, the new penalties empower an Adjudicative Committee to suspend all or part of a sentence (Rule 174 refers) – something that was not previously available. The RIB were supportive in this case of a suspended sentence had the breach occurred after 1 February 2023.

[78] It is clearly the intent of the GRNZ policymakers in future cases, to permit a sentence to dealt with under increased or wider sentencing options. With that in mind, together with the need to ensure that the penalty reflects natural justice, fairness and proportionality principles balanced against the need for deterrence and accountability, the Adjudicative Committee has determined a fine less than that which would normally he imposed for a Prohibited Substance charge, is appropriate in this case.

Note for Authorities.

[79] This case has highlighted the possibility that kennels that have been treated with CCA could, through chewing or licking, cause elevated Arsenic levels, through licking. This causative link may not be well known to some Industry participants. On that basis, there is an opportunity for GRNZ and the RIB, if it has not already occurred, to mitigate potential further breaches by alerting Industry participants of the findings in this case. Particularly the reference to Australian Greyhound Welfare and Integrity Commission published an article (at paragraph 17) linking Copper Chrome Arsenate (CCA) treated timber to Arsenic threshold breeches; namely that:

“CCA is a wood preservative used to treat timber against rot and pests. Licking or chewing of kennels or yards with treated timber has been implicated in threshold breaches. CCA is dangerous because it contains Arsenic, a known human carcinogen. Over time, the Arsenic can leak out from inside the wood into the surrounding soil and onto the surface of the wood. From the surface, the Arsenic can be picked up on the paws of passing pets, who later ingest it”.

Penalty

[80] The Respondent, Ms Watson is fined $1000.

[81] Given the Respondent’s age and earning capacity, it is recommended that GRNZ consider allowing the fine to be paid in mutually agreed instalments so as to limit any undue hardship that may arise.

Costs

[82] There is no order for costs.