Non Raceday Inquiry – Decision dated 30 August 2021 – Michael Boyle and Kevin Boyle

DECISION OF ADJUDICATIVE COMMITTEE

[1] The Informant, the Racing Integrity Board (RIB) (formerly the Racing Integrity Unit), alleges “on the 29th of June 2018, Michael Francis Boyle, being the registered Trainer of the Thoroughbred LORD BEAVER presented the horse to race in Race 3, the Otago Farm Machinery Rating 75 Benchmark, at the Otago Racing Club’s meeting at Wingatui with a prohibited substance, namely total carbon dioxide (TCO2), in its system in excess of 36.0 mm/L of plasma. This is a breach of the Prohibited Substance Regulations and the Prohibited Substance Rule, r 804(3), and Mr M Boyle is therefore liable to the penalty or penalties which may be imposed in accordance with r 804(7)(a), (b) and (c) and to the horse penalties in r 804(8).”

[2] The Informant also alleges “on the 29th of June 2018, Kevin Joseph Patrick Boyle, being the person in charge of the Thoroughbred LORD BEAVER presented the horse to race in Race 3, the Otago Farm Machinery Rating 75 Benchmark, at the Otago Racing Club’s meeting at Wingatui with a prohibited substance, namely total carbon dioxide (TCO2), in its system in excess of 36.0 mm/L of plasma. This is a breach of the Prohibited Substance Regulations and the Prohibited Substance Rule, r 804(3), and Mr K Boyle is therefore liable to the penalty or penalties which may be imposed in accordance with r 804(7)(a), (b) and (c) and to the horse penalties in r 804(8).”

[3] Rule 804(3) provides:

The Trainer and any other person who in the opinion of a Tribunal conducting an inquiry was in charge of a horse, which was or was to be brought to a Racecourse or similar racing facility for the purpose of engaging in any Race or trial to which the Third Appendix hereto applies, commits a breach of these Rules if such Tribunal conducting an inquiry finds that the result of analysis of any test or sample taken from the horse after the scratching deadline (as specified for the relevant Race Meeting in accordance with r 510(d)(v) or as amended by NZTR from time to time) on the day on which the horse was to Race or trial discloses a level of article, substance or liquid equal to or greater than any such level which is specifically contained in the Prohibited Substance Regulations.

[4] The penalty provisions are rr 804(7) and 804(8).

[5] Rule 804(7) states: “A person who commits a breach of sub-Rule … (3) … of this Rule shall be liable to: (a) be disqualified for a period not exceeding five years; and/or (b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months…; and/or (c) a fine not exceeding $25,000.”

[6] Rule 804(8) provides: “Any horse connected with a breach of sub-Rule … (3) … of this Rule shall be, in addition to any other penalty which may be imposed, disqualified from any Race or trial to which the Third Appendix hereto applies and/or be liable to a period of disqualification not exceeding five years.”

[7] There have been a number of telephone conferences with respect to this matter. The Respondents took both legal and scientific advice. An English equine expert was consulted and there were delays due to Covid-19.

[8] The Respondents admitted the breaches of the Rules through their lawyer at a teleconference on 14 July last. The parties agreed the matter could be progressed on the papers.

[9] The Committee has received written penalty submissions.

The Facts

[10] LORD BEAVER was a six-year-old gelding owned by Mr Michael Boyle.

[11] LORD BEAVER was correctly entered and started in Race 3 the Otago Farm Machinery Rating 75 Benchmark over 1500 metres at the Otago Racing Club meeting at Wingatui held on Friday 29 June 2018 finishing in 3rd place. Total stake money for the race was $11,000. The breakdown of stake money was 1st $6,875, 2nd $2,200, 3rd $1,100, 4th $550 and 5th $275.

[12] Mr Michal Boyle was the registered Licensed Trainer and Mr Kevin Boyle a Licensed Stable-hand.

[13] LORD BEAVER had 22 previous starts for three wins, one second, three thirds and seven fourths for total stake money of $36,325.00 as of 29 June 2018.

[14] Prior to the race LORD BEAVER was randomly selected for pre-race total carbon dioxide (TCO2) testing.

[15] The testing was conducted by Equine Veterinarian, Ms Stephanie Bransgrove, in the presence of stable representative Mr Kevin Boyle, the brother of the Trainer, at 12:09 pm immediately after LORD BEAVER had arrived on course. The number of the sample obtained was T21110. LORD BEAVER was due to race at 1:32 pm.

[16] The sample was subsequently sent to the NZ Racing Laboratory Services for analysis.

[17] On 4 July 2018 the NZ Racing Laboratory Services formally advised the sample numbered T21110 exceeded the permitted threshold pursuant to the Rules of NZTR in that it recorded 38.9 millimoles per litre of plasma (mm/L). The threshold is 36.0 mm/L or less.

[18] LORD BEAVER had previously been TCO2 tested at Riverton in May 2016 where it recorded a reading of 30.9 mm/L.

[19] Dr Andrew Grierson, the Chief Veterinarian for NZTR, forwarded a formal report which confirmed the TCO2 reading at above 36.0 mm/L was a breach of the Rules. Dr Grierson further reported the chance of it being an untreated event was more than one in two million. Dr Grierson concluded he could find no reason to explain LORD BEAVER being presented to the races with a TCO2 level of 38.9 mm/L besides that of the administration of an alkalising agent.

[20] LORD BEAVER was further tested on 10 July 2018 during the investigation where it recorded a reading of 27.9 mm/L.

[21] On 4 August 2018 LORD BEAVER was once again TCO2 tested at the Canterbury Racing Club meeting held at Riccarton where the level recorded was 29.1 mm/L.

[22] Racing Investigators interviewed Messrs Michael and Kevin Boyle on 10 July and 1 August 2018. On 10 July Mr Michael Boyle advised that he did not attend the races on 9 June due to his full-time work commitment as a supervisor in a processing plant and could offer no explanation for the high reading. He advised that although he is the Registered Trainer of the horse, the majority of the day-to-day work with LORD BEAVER is completed by his brother, Mr Kevin Boyle, who is a registered Stable-hand and was in charge of the horse on the day of the races.

[23] Mr Michael Boyle stated he would attend most race meetings when not working and would attend to the stables when available. He was also in regular contact with his brother and their Track Work Rider regarding the training of LORD BEAVER.

[24] Mr Kevin Boyle on 10 July 2018 acknowledged he would feed LORD BEAVER, which in the evening would include two scoops of Stressalyte. He was also unable to explain the high reading other than the possibility that a third party may have been involved. A named suspect was interviewed by RIU Investigators [as they then were], and he vehemently denied any involvement. There was also no evidence to implicate the named person.

[25] Due to the Boyle’s concerns, a security camera had been installed in the stable complex after LORD BEAVER had been let out of his stable around 16 months earlier and the water buckets had been moved from the stable. The cameras were not in operation in the lead up to the races on 29 June.

[26] An examination of the stable complex and feed-room failed to detect any equipment for the administration of an alkalising agent. A product named Stressalyte was located in the feed room and sent to the Racing Laboratory for analysis. The Racing Laboratory confirmed this product contained an alkalising agent. Mr Michael Boyle acknowledged that Stressalyte was being giving to LORD BEAVER daily.

[27] The summary also outlined the betting activity of the Respondents with respect to the horse.

[28] Mr Michael Boyle and Mr Kevin Boyle have no prior breaches of the Prohibited Substance Rules and cooperated with the investigation.

Informant’s penalty submissions

[29] The Informant referred to RIU v Lawson 13 May 2019 where the Appeals Tribunal commented at [25]:

Proceedings under the Rules 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. Disciplinary sanctions are designed for some important different purposes, and although guidance can be gained from the criminal jurisdiction, there are broader considerations. The Harness and Thoroughbred racing “industry ” is a profession where key participants are required to be licensed in order to practice in various ways within that sphere. Comprehensive rules of practice, behaviour, procedure and the like are set down in extensive detail in the Rules which govern the codes and behaviour. As with most professions, a careful internal disciplinary and regulatory process is set up. Those who practice within professions (whether law, accountancy, medicine, teaching, real estate, and the like) are subject to sanctions for breaches of standards of conduct or rules designed to protect members of the profession as well as the public. Such sanctions can at the highest end include removal from a profession for serious breaches of professional rules and standards involving dishonest or immoral conduct. Such behaviour if unchecked may greatly harm the reputation of the profession and “bring it into disrepute” – that is, the public loses confidence in it.

[30] Citing Z v Complaints Assessment Committee [2009] 1 NZLR 1, Mr Lange summarised the purpose of professional disciplinary proceedings as: to enforce a high standard of propriety to maintain the high standards and good reputation of a profession; and to protect the public from a specific practitioner or others who might be like-minded to act.

[31] Applying the principles of professional disciplinary proceedings to a disciplinary proceeding in a sport, the purpose, the RIB submitted, was to: enforce a high standard of propriety to maintain the high standards and good reputation of a those involved in the sport; and to protect the betting public and others involved in the sport from future breaches by the individual or others who might be like-minded to breach the rules.

[32] The Prohibited Substance Rules impose an absolute obligation on Trainers and persons in charge of the horse to ensure horses are presented to race free of prohibited substances regardless of how the prohibited substance came to be present.

[33] That standard was said to be reflected in the following extracts from racing decisions:

[34] Coulson (1993):

The problems about drug-free racing have been emphasised from time to time, and this Authority has repeatedly pointed out there is a heavy obligation on the part of those who bring their horses to a Harness Racing meeting to ensure that the Rules in all relevant respects have been complied with, and we are satisfied that in this particular case the Appellant failed to take adequate steps to ensure that the horse was in fact drug free.

[35] Nicholson (1994):

We say again what we have said before, and that is that those who are responsible for the training of horses or other animals in any Racing Code are subject to a very onerous obligation to ensure that the Rules of Thoroughbred Racing, Harness Racing or Greyhound Racing, in relation to drug-related matters are firmly adhered to…. There is an obligation to ensure drug-free racing…. There are two other things which I think need to be said. In a sense, this is repetitious, but it is essential that all concerned in the Racing Industry, in whatever Code the person participates, understands that this Authority will not tolerate in any respect the use of substances which breach the Rules…. The Rules now are fairly clearly definitive of what the obligations of persons in the Industry are, and this Authority sees it as part of its statutory responsibility to ensure that the Rules in this and other respects are adhered to…. There is nothing more likely to bring down the integrity of the Racing Industry generally than the fact that horses perform at meetings when they have been administered, whether innocently or for some ulterior motive, a prohibited substance.

[36] Lamb (1998):

The duties on Trainers are high and appropriately so. All reasonable steps must be taken to avoid the administration of drugs to horses being presented for racing. Proper care and vigilance are required at all times at the stables and at the track. Where there is a breach of the drug negligence Rule Trainers must expect substantial penalties.

[37] Bentley (1998):

Because of the financial investing interests of the public in horse racing the integrity of the sport requires that the Rules of Racing have to be complied with to ensure fair competition. Fair competition requires that horses that are competing are free from any potential advantage that may be obtained through the involvement of drugs as defined by the Rules of Racing and this in turn requires a high degree of vigilance by Licensed Trainers. It is the duty of Trainers to take all available steps to ensure there is no breach in this regard. A breach as a result of negligence must be viewed seriously by both Judicial Committees and by this Tribunal.

[38] Justice (2012):

Once a breach is established, general deterrence and denunciation are appropriate in imposing penalty. There is a need to bring home to Trainers/Owners the heavy responsibility of presenting horses free of prohibited substances. Previous penalties have failed to do this, as illustrated in decisions such as Bentley.

[39] Scaife (2012):

The parties agree it is imperative for the future of the Industry that racing be perceived to be, and indeed is, drug free. To this end, in imposing penalty we believe the relevant considerations were correctly identified by the Appeals Tribunal in Justice (2012) when it stated: “Once a breach is established, general deterrence and denunciation are appropriate in imposing penalty. There is a need to bring home to Trainers/Owners the heavy responsibility of presenting horses free of prohibited substances.”

[40] A breach of the Prohibited Substance Rule does not require investigation to establish how the substance came to be in the horse’s system. This is expressly provided for by the Rule and is also recognised in the Appellate decisions in Nicholson and Lamb.

[41] Applying the principles that are applicable to disciplinary proceedings and focussing on maintenance of standards and not punishment, the RIB submitted the Committee should consider: the extent to which the Trainer or Stablehand has fallen below the expected standard; the reason or cause the Rule was breached; and what steps have been taken to modify their practices to ensure, or at least minimise the risk of the breach re-occurring.

[42] When on a first breach, a person charged with a breach of the Rule acknowledges the standard expected of them, that they have fallen below the standard, and can demonstrate practices have been modified to prevent reoccurrence it was submitted the imposition of a fine may suffice. However, where there is a failure to accept the standards imposed or a failure to modify practices to prevent reoccurrence, the need to enforce a high standard of propriety, to maintain the high standards and good reputation of the sport, and to protect the public from a specific individual or others who might be like minded to act, might indicate that a period of disqualification is appropriate.

[43] Mr Lange submitted that if the Boyles were unaware that Stressalyte contained an alkalising agent, they needed to obtain professional advice of the contents of feed additives and the timing of giving additives before racing. If it was asserted the horse was given the alkalising agent by a third party, there had been a failure to properly supervise the horse before racing.

[44] The fact there has been no elevated TCO2 since 29 June 2018 was viewed as supporting the inference that steps had been taken to ensure the breach had not been repeated.

[45] The Informant produced a comprehensive list of penalties imposed for a breach of the Rules relating to TCO2. These penalties ranged from a fine of $500 to one of $9,200.

[46] The RIB submitted the facts in the present proceedings were not dissimilar to Dickson where the fine was $9,200. The level in the present case and in Dickson was said to be high, and in both proceedings the Respondent had no prior breach of the rules.

[47] Dickson was a Harness Racing case. Although the NZTR rules have a higher maximum fine ($25,000) than in Harness Racing ($20,000), culpability was submitted to be broadly comparable.

[48] The RIB submitted a fine of $8,000 was appropriate, together with the mandatory disqualification of the horse under r 804(1) and the refund of the $1,100 stake paid. The total fine could be apportioned as the Committee saw fit between the Respondents.

[49] An order was also sought in relation to the (former) RIU costs, which were said to be “significantly higher than would usually be the case”. The costs incurred before the breach was admitted totalled at least $6,238.75.

Respondents’ penalty submissions

[50] Mr Tohill stated that he concurred with the Informant’s approach to sanctions. These submissions from the Informant are set out in this decision at [29]-[42].

[51] Counsel for the Respondents also stated that they accepted the starting point would be in the $10,000 range and proposed a fine in the amount of $6,000, together with costs.

[52] The Respondents accepted that LORD BEAVER had been presented with very high levels of TCO2. This was an aggravating factor similar to that in Dickson.

[53] Dickson demonstrated a lack of established feeding pattern, an absence of records relating to how often additives were given, a degree of vagueness in the number of additives given, with it being referred to by way of handfuls of feed. The Respondents highlighted these differences in culpability with Dickson, and argued a 40% uplift, as in that case, was not warranted. Arguably, there was a lower degree of culpability in the present case, with the Respondents relying on a commercial product and its directions.

[54] It was submitted that the betting on LORD BEAVER was not an aggravating factor given the horse’s placing in earlier and subsequent races where the TCO2 levels were significantly lower, and the bets were not inconsistent with their other betting on the horse.

[55] Counsel submitted a 20% uplift was available to the Committee.

[56] The principal mitigating factor was identified as being that the first Respondent had been a Licensed Trainer for 40 years and had not previously breached the Prohibited Substance Rule. The second Respondent had been a Registered Stablehand for a similar period, and he too had not breached the Rule.

[57] Both Respondents had been fully co-operative with the (then) RIU investigation and were embarrassed and upset at the high levels.

[58] The Respondents accepted that they had been unable to explain how the high levels of TCO2 were present in LORD BEAVER but acknowledged that for the purposes of penalty this was neither an aggravating nor a mitigating factor. Mr Tohill emphasised that the high levels were not with the intent of obtaining an unfair advantage.

[59] Since the incident there had been no further recorded high levels of TCO2. The Respondents had made changes to ensure that LORD BEAVER did not again present with high levels. This was due in part to their having a better understanding of Stressalyte together with better security and monitoring of the stables.

[60] The Respondents believed a discount of up to a third was available for good record and admission of the breach, although it was accepted that this was not entered at the earliest opportunity. However, the admission was prior to any hearing of the matter.

[61] Mr Tohill concluded his submission by asking the Committee to take into account the costs award when determining the end penalty.

Decision

[62] The Respondents have admitted a breach of r 804(3) in that LORD BEAVER was presented to race in Race 3 at the Otago Racing Club’s meeting at Wingatui on 29 June 2018 with a prohibited substance, (TCO2), in its system in excess of 36.0 mm/L (38.9 mm/L).

[63] The Prohibited Substance Rules impose an absolute obligation on Trainers and persons in charge of a horse to ensure it is presented to race free of prohibited substances. That the breach is one of absolute liability is established in the decision of the High Court in Justice v HRNZ [2012] NZHC 3484 (with respect to a similarly worded Rule in the Harness Code).

[64] In determining culpability, the Informant has submitted that it is appropriate to have regard to the extent to which a Respondent has fallen below the expected standard, the reason the Rule was breached, and whether steps have been taken to modify practice to minimise the risk of the breach re-occurring. This conclusion is drawn from the cases the RIB cite in their penalty submissions, and it is apt in the circumstances of this case.

[65] While the Respondents submit that the circumstances surrounding the breach are not known, it is evident that Stressalyte was a regular additive to the horse’s feed.

[66] The Respondents state that a measured amount of Stressalyte was given to the horse nightly in its feed in accordance with the manufacturer’s instructions, without regard being had to the contents of the product. That it contained an alkalising substance was not known to them. They should have inquired when purchasing the product or at least read the list of ingredients, which presumably would have been stated on the container.

[67] Once LORD BEAVER returned a positive reading, the feeding practices and stable security were altered and there was no repeated elevated level. Thus, the Respondents appear to have made appropriate modifications to stable routine.

[68] Culpability in these circumstances is mid-range. There is no allegation, of course, of an intention to obtain an unfair advantage. The charge is one of presentation, a Rule which, as previously noted, is one of absolute liability. The case of Lawson, that is cited by the Informant refers to “dishonest or immoral conduct”. This is not an accurate description of the Respondent’s conduct in this case, which is viewed as a lapse of judgement, a feeding regime that was adopted without thought to the consequences, by licence-holders of otherwise good standing in the Industry.

[69] The parties are not far apart with respect to their penalty submissions. The Informant submits that a fine of $8,000 be imposed, while the Respondents submit a fine of $6,000, and that consideration be given to the total financial impost upon the Respondents.

[70] The penalty imposed must reflect the need to uphold the integrity of the Thoroughbred Industry and reinforce the onerous obligations that necessarily accompany the right to being a Licence-Holder in this Industry. There is a need to hold the Respondents accountable and to deter them and others. The need for racing to be drug-free is self-evident. The integrity of the Industry demands nothing less.

[71] There are no personal aggravating factors. The betting figures do not obviously support an uplift and there is no submission to this effect from the Informant.

[72] The JCA Penalty Guide (1 August 2018) has a starting point of $8000 for a first presentation breach. The high-level in this case merits a 30% increase to $10,400. This is less than the 40% in Dickson, which the Informant has identified as a comparable case, with the Committee accepting the Respondents’ submission that their feeding regime was more structured in that they were giving a measured amount and were following the manufacturer’s instructions.

[73] Personal mitigating factors are the Respondents’ admission of the breach, which was not at the first opportunity but was after consultation with an equine expert, their record under this Rule (which is excellent as they have been involved either as a Licensed Trainer or Stable Hand for some 40 years and have not had a previous breach of this or any Prohibited Substance Rule), and their co-operation during the investigation process. The matter has also been dealt with without the need for a formal hearing.

[74] Regard is had to the total financial penalty, as the Respondents have submitted, but it must be emphasised that costs are imposed for an entirely different purpose than is a fine. Costs are not awarded as a penalty or as a substitute for a penalty against a Respondent in respect of whom a charge has been proved. It is desirable to recover costs incurred as a result of a Respondent’s conduct from the respondent rather than passing those costs on to the Racing Industry as a whole.

[75] The Committee has not been provided with any submissions concerning the financial situation of the respective Respondents. It proceeds on the assumption that each Respondent is able to meet the financial penalty imposed.

[76] The reduction for personal mitigating factors in Dickson was one third, which was approved by the Appeals Tribunal. A similar discount is appropriate in this case. That leaves a penalty rounded down to $6,850. The circumstances of the breach suggest that this figure be divided evenly between the two Respondents as while Mr M Boyle is the Trainer of the horse, it appears he left the day-to-day work to Mr K Boyle, which included feeding the horse and adding the two scoops of Stressalyte. Each has to share responsibility for the breach.

Disqualification

[77] LORD BEAVER is disqualified from third place in Race 3, the Otago Farm Machinery Rating 75 Benchmark, at the Otago Racing Club’s meeting on 29 June 2018. Placings are to be adjusted and stakes paid accordingly. The connections of the horse are to refund the $1,100 stake paid.

Costs

[78] The Informant seeks costs of 6,238.75. The Respondents do not challenge this figure. The Committee is aware there have been numerous teleconferences with respect to this matter and that there was further involvement by NZ Laboratory Services consequent upon their reporting of the elevated reading.

[79] Costs are discretionary and must be just and reasonable. It is not usual for indemnity costs to be awarded. Costs in the order of 60% are not uncommon and an award of $3700 is made to the RIB and costs of $700 to the JCA.

Dated at Dunedin this 30th day of August 2021.

Geoff Hall, Chairman