Non Raceday Inquiry – Decision dated 3 May 2023 – Mark Brooks

The Respondent, Mr Mark Brooks, is the holder of a Public Trainers’ Licence issued by New Zealand Thoroughbred Racing. On 10 February 2023, he was in charge of the horse IN THE LOOP which was entered in Race 7 at the Hawke’s Bay Racing Club. The horse arrived at the racecourse with a clay poultice applied to both front legs. He has admitted a charge under r 804(5)(a) (the “One Clear Day” Rule) of administration by topical application of a poultice.

Rule 804(5) states:

Notwithstanding (and without limiting) and other provisions of this Rule, no person, other than a Veterinarian, who is an official, shall administer or cause to be administered, in any manner whatsoever, any substance, other than a permitted substance to a horse entered in a race at any time during:

• The one clear day, being the 24-hour period before 12.01 am on the day the horse is to race; or
• the day of that Race, trial or jump out (which, for the avoidance of doubt, commences at 12:01 am on the day the Race, trial or jump out takes place) and prior to the start of such Race, trial or jump out,

unless the substance was administered with the written consent of a Stipendiary Steward or Investigator and the Stipendiary Steward or Investigator was satisfied on reasonable grounds that the substance was being administered, and was necessary, solely for horse welfare reasons.

“Permitted Substance” is defined in r 104 as:

(a) food or water; or

(b) any substance, or class of substance or substances, declared to be a Permitted Substance by NZTR and appearing in a list of Permitted Substances issued by NZTR.

The penalty provision is r 804(7) which provides:

A person who commits a breach of sub rule (5) shall be liable to:

• Be disqualified for a period not exceeding 5 years; and/or
• Be suspended from holding or obtaining a licence for a period not exceeding 12 months. If a licence is renewed during a period of suspension, then the suspension shall continue to apply to the renewed licence; and/or
• A fine not exceeding $25,000.

The parties consented to the matter being determined “on the papers”.

After receiving the Summary of Facts and the Informant’s Penalty Submissions, the Adjudicative Committee issued a Minute requesting a clarification of the inter-relationship between the summary and paras (a) and (b) of r 804(5).

Summary of Facts

There is an agreed Amended Summary of Facts.

Mr Brooks trains the 3-year-old grey filly, IN THE LOOP. The horse is owned by J & K Murdoch. She has had four starts with one win.

Mr Brooks trains from Cambridge. On 10 February 2023, Mr Brooks attended the Hawke’s Bay race meeting at Hastings. IN THE LOOP was entered in Race 7. Mr Brooks arrived at the racecourse at approximately 2.20 pm. He was seen leading the filly by the Racing Investigator and other Trainers. The filly had a clay type poultice applied to both forelimbs from her fetlocks to above her knees.

Mr Brooks was approached by the Racing Investigator and questioned about the poultice. He explained that he had applied the poultice the previous day and not had time to remove it as his truck had arrived early to collect the horse.

He was later asked to attend the Stewards’ Room, where it was explained to him that the application of the poultice was a breach of the NZTR Rules, and the horse was to be scratched from its race under r 209(1)(c). This Rule states: “Stipendiary Stewards and Investigators may scratch from a Race … any horse on any reasonable grounds including but not limited to: (c) that the horse has or may have had administered to it a Prohibited Substance.”

Mr Brooks advised that he was  not familiar with the Rule and had applied the poultice for welfare reasons. He advised the poultice had been applied at approximately 3.00 pm the previous day and, due to time restrictions, it had not been removed. He argued the filly should not be scratched and stated it was an over-reaction.

The application of a poultice in these circumstances is not permitted under the Rules of Racing. A Directive to this effect was sent to all Trainers by NZTR in December 2019.

Submissions as to Penalty

The RIB sought no further penalty other than the losses already occurred by Mr Brooks.

Mr Brooks had transported IN THE LOOP from Cambridge to Hastings for participation in Race 7. Mr Brooks incurred transport costs of $500. The horse was scratched from engaging in the race causing a loss to Mr Brooks of $500 and a day’s work.

The were no aggravating features. The RIB accepted there were no sinister intentions in relation to the application of the poultice, and that Mr Brooks had applied the poultice for welfare reasons.

The RIB referred to comparable cases:

RIU v Luxton – 16 November 2019 (syringing water into the horse’s mouth by means of a B-Boost syringe — the Committee believed it was likely that Mr Luxton was unaware he was breaching the Rules — fine of $1000 and the horse was not allowed to start in the race.

RIU v Lock – 25 March 2013 (administration of a substance (Glycerine) with a syringe into the mouth of the horse prior to the race — fine of $750 and the horse was scratched from the race.

RIU v Walker –11 December 2013 (administration into the mouth of the horse with a syringe — product administered for welfare reasons — unaware he had breached the Rules — fine of $1000.

Mr Brooks has no previous breaches of the Prohibited Substance Rule. He was cooperative with the process and accepted the breach.

The Adjudicative Committee observed that the cases cited by the Informant related to raceday administration, whereas the Respondent was charged with and had admitted a breach of r 804(5)(a) (the “One Clear Day” Rule). The Adjudicative Committee by way of a Minute dated 3 April, asked the Informant to identify for the Adjudicative Committee “One Clear Day” cases where no penalty had been imposed.

The Informant responded that there had been no similar cases in circumstances where there had been a breach of the “One Clear Day” Rule involving a topical application either on raceday or the day prior. The RIB referred the Adjudicative Committee to RIU v K & L Rae & K Williams (2018) where a horse which returned a positive to Methamphetamine, with no evidence of its origins, was disqualified from the race with no further penalty. The Adjudicative Committee in that case commented: “We accept that the Respondents have suffered the financial impost as described above (cost of the B sample analysis and loss of stakes & Trainer’s percentage) and that this is sufficient penalty. We do not believe our imposing a further small financial penalty, perhaps in the interest of general deterrence as sought by the RIU advances this cause.”

The Informant concluded its further penalty submission by stating the breach was minor in nature with no malicious intent. The Respondent had already been penalised financially in the cost of transport and the horse had missed the opportunity to race, penalising the Owners. As was the case in Rae & Williams, there was no additional need for further penalty.

Mr Brook responded to the Informant’s further submissions by confirming that the Amended Summary of Facts was correct.  He added there was no raceday application of the poultice. It was applied the day before — more than 24 hours before race start time — and had not been washed off. The product used, he noted, was classed as a leg clay.

Reasons for Penalty

Mr Brooks has applied a clay type poultice to both forelegs of IN THE LOOP mid-afternoon the day before the horse was due to race at Hastings on 10 February 2023. This poultice had not been removed prior to the horse being transported to the racecourse.

The NZTR Directive 2019, “Race Day Treatment of Racehorses”, clearly states: “The application of a poultice is not permitted.” The Adjudicative Committee is advised that a Directive to this effect was sent to all Trainers by NZTR in December 2019 and this information is available on the loveracing.nz website. Rule 106 states that NZTR may make or issue Directives; all of which must be followed by those bound by the Rules, and form part of the Rules.

Mr Brooks was not aware of this Directive. He applied the poultice the afternoon before the race meeting, and this was still affixed to the horse when it arrived at the Hastings Racecourse. Significantly, with respect to r 804(5)(a), a poultice is not a Permitted Substance under the Rules. His actions fall within both paras (a) and (b) of r 804(5), although the Respondent is only charged under (a) (the “One Clear Day” Rule) and has admitted that breach.

This case is unusual. The Informant has been unable to locate a case with similar facts. Rae & Williams differs from the case at hand as no fault could be attached to the Respondents’ actions in that case. Mr Brook, however, has applied a substance (a poultice) 24 hours before raceday.

The cases cited in the Informant’s principal penalty submission, as acknowledged, differ from that before the Adjudicative Committee in that they involve administration on raceday of a product directly into a horse’s mouth by syringe, whilst the current matter applies to topical application of a clay poultice. The administration of a substance by syringe can be viewed as a more serious breach.

Oral administration on raceday is more serious in that it immediately calls into question the integrity of Racing and creates the perception that the Trainer is doing something sinister. However, the unloading from the float on raceday of a horse with a poultice affixed to each foreleg, also raises the issue of a topical substance that is not permitted by the Rules, having been administered to the horse. The need to ensure the public’s confidence is a paramount consideration and all participants in the Racing Industry need to be aware of this at all times. The obligation upon the Respondent, as a Licensed Trainer, is to be cognisant of the Rules, whether this be the NZTR Directive or the “One Clear Day” Rule.

The Adjudicative Committee refers to the sentencing principles outlined in Lawson (May 2019), that it must endeavour to reach a proportionate balance between the public interest; the interests of the offender; the interests of the professional body as a whole; the seriousness of the offending; and any aggravating and mitigating factors.

Mr Brooks holds a Class A Trainer’s Licence. He is an experienced Trainer, first licensed in the 2000/2001 season, with his horses having had 797 career starts. He has no previous breach of the Prohibited Substance Rule. He has cooperated with the Racing Investigators and has admitted the breach.

While Mr Brooks states he was not able to remove the poultice due to the horse being transported from his stable early in the morning and that was why he was in breach of the Directive (one that he was not aware of, in any event), a substance, the poultice, should never have been applied in the 24-hour period prior to 12.01 am raceday. This is a breach of the “One Clear Day” Rule.

The affixing of the clay type poultice in this case, while for the horse’s welfare, can be perceived as being detrimental to the image of racing. The penalties in the oral administration cases cited to the Adjudicative Committee range from $750 to $1000. No doubt there would have been transport costs involved in these cases as well, but their extent is, of course, not known to the Adjudicative Committee.

Decision as to Penalty

Notwithstanding the submission from the Informant that a penalty is not necessary in this case, the Adjudicative Committee is of the view that a fine in addition to the significant transport costs incurred by Mr Brooks is required to mark the breach. This case, as previously emphasised, is of a lesser ilk than the raceday administration cases cited to the Adjudicative Committee but is not of a similar nature to Rae & Williams, where no culpability could be established. A penalty is appropriate, but at a lower level than that imposed in the oral administration cases.

Mr Brooks is fined the sum of $500.

The Informant has not sought costs and, as the matter has been dealt with on the papers, there are no Adjudicative Committee costs.