Non Raceday Inquiry – Decision dated 6 December 2024 – Bruce Negus

[1] The Respondent, Mr Bruce Negus, is charged that on or about 27 September 2017 at Burnham he committed a breach of r 1004AB(5) (now r 1004J(1)) of the NZ Rules of Harness Racing in that being the trainer of the horse MISSANDEI from which a blood sample was taken, had detected in it an Out of Competition Prohibited Substance namely Testosterone Cypionate (TC).
[2] The charge arises from an out of competition sample taken from a horse trained by Mr Negus, MISSANDEI, on 28 September 2017 (sample 129275).
[3] The hearing of the charge was over a period of four days on 24 and 25 October 2023, and 21 and 22 March 2024. Written final submissions were received, and oral final submissions were presented via AVL on 18 September last.
[4] The evidence of expert veterinarian Dr Grierson was that while Testosterone is present in nature, TC is not, as it is a synthetic man-made compound. This was not challenged by the Respondent and was confirmed by Professor Shaw, an expert witness for the Respondent.
[5] The Informant states that the evidence at the hearing established that Mr Negus was the Licensed Trainer of MISSANDEI and sample 129275 had detected in it the prohibited substance, TC. The Respondent states that the charge should not be found to be proved as: sample 129275 tested positive for TC because it was contaminated with TC either before (when the sample was collected) or during the analytical process, not because MISSANDEI had TC in her system when the sample was taken; and the charge should be dismissed due to an alleged abuse of process.
The Rules and regulations
[6] Rule 1004AB provides:
(1) A Stipendiary Steward or Racecourse Inspector may at any time carry out tests and/or examinations, including the taking of a sample on any registered horse to determine whether a prohibited substance was in, is in, or on a horse.
(2) For the purpose of testing or examining a horse the Stipendiary Steward or Racecourse Inspector may use the services of a Veterinary Surgeon or other appropriately qualified person.
(3) Every owner, trainer and person in apparent control of the horse shall comply with any direction relating to such testing and examination given by the Stipendiary Steward or Racecourse Inspector.
(4) No person shall interfere with, or prevent, or endeavour to interfere with or prevent the carrying out of any test or examination.
(5) When any sample taken has detected in it, or any test or examination establishes the horse has had administered to it, any prohibited substance specified in Prohibited Substance Regulations as “Out of Competition Prohibited Substance”, the trainer and any other person in apparent control of the horse commits a breach of the Rules.
(6) A breach of sub-rule (3), (4) and (5) hereof shall be declared a serious racing offence.
[7] The elements of an offence against r 1004AB(5) are:
(a) the Respondent was the trainer or a person in apparent control of the horse MISSANDEI;
(b) a sample taken from MISSANDEI had detected in it TC, which is a prohibited substance specified in the Prohibited Substance Regulations.
[8] Pursuant to cl 6.5 of the HRNZ Prohibited Substances and Practices Regulations, TC is an Out of Competition Prohibited Substance as it is an anabolic androgenic steroid. This fact was confirmed by veterinarian Dr Grierson and by Professor Shaw, and we understand that this is accepted by the Respondent. TC is not a threshold substance; the presence of the drug is a breach of the Regulations.
[9] The Swabbing Instructions state:
Notification of Analysis from Samples:
1. HRNZ shall advise the Owner and Trainer of a horse of any analysis which indicates that a prohibited substance may have been administered to a horse.
2. Once the Owner and Trainer has been so advised the Owner, or his authorised representative, or the Trainer has until 4.00pm on the third working day after notification to request the reserve sample (if one is available) and reserve control sample be analysed at a laboratory approved by HRNZ.
3. Once that request is given, the sample shall be forwarded under the direction of HRNZ’s Chief Executive to the approved laboratory for analysis. Such analysis will be for prohibited substance(s) identified in the original analysis. The results of such analysis shall be returned to the person who requested the analysis and HRNZ simultaneously.
4. The Owner or Trainer or their authorised representatives shall have the opportunity to observe the identification of the sample and control sample at the premises of the Laboratory at which the samples are held and their packaging and dispatch to the approved laboratory.
5. It shall not be a defence to any proceedings brought as a result of any tests taken under these directions that not sufficient urine or blood was available for the reserve sample.
6. It shall not be a defence to any proceedings brought as a result of any tests taken under these directions that the reserve sample was lost or damaged prior to or during analysis by the approved laboratory.
[10] Rule 1008A provides that where any matter is required to be proved by an informant or a defendant, the standard of proof is on the balance of probabilities.
[11] Pursuant to r 1008(a), in the absence of any express provision to the contrary (and neither party has submitted that there is any contrary provision), it is not necessary for the Informant to prove the Respondent intended to commit a breach of the Rule (ie administered the prohibited substance or knew that the horse had a prohibited substance in its system).
[12] In addition, r 1008(b) states that a breach of r 1004AB is a strict liability offence. The Informant therefore must prove the breach to the standard of on the balance of probabilities that sample 129275, taken from MISSANDEI, had TC detected in it. (It was never alleged that Mr Negus had himself administered TC to the horse.) This is the conventional civil standard of proof. The Tribunal is conscious that the more serious a charge, the more compelling the proof that is required. Reference the judgment of the Supreme Court of New Zealand in Z v Dental Complaints Assessment Committee [2009] I NZLR 1 and the Briginshaw principle which is also to the effect that the more serious an allegation, the more substantial the evidence that may be required in order to prove the allegation on the balance of probabilities.
The samples
[13] The Informant’s submissions proffered the following reference to Sample 129275 and the further samples which we believe is apt, and we adopt for ease of reference:
(a) Sample 129275, taken on 28 September 2017, was comprised of eight tubes of blood packed into a sealed sample bag (also referred to as a satchel or a security pouch):
(i) Tube 1 was used by New Zealand Racing Laboratory Services Ltd (NZRLS) for screening analysis. This analysis returned an indicative positive for TC.
(ii) Tubes 2 and 3 were used by NZRLS for confirmatory analysis. This analysis confirmed that the sample contained TC. The Certificate of Analysis was produced at the hearing as Exhibit 3.
(iii) Tube 4 was used by NZRLS for an experiment to understand the effect of the thawing process on degradation of TC in the sample. This experiment was not reported on, and data was not retained as the process followed was not confirmatory analysis.
(iv) Tubes 5 and 6 comprised the B-sample. These were sent to Racing Analytical Services Ltd (RASL) for confirmatory analysis. The analysis confirmed that the sample contained TC. The Certificate of Analysis was produced at the hearing as Exhibit 5.
(v) Tube 7 was used by the Hong Kong Jockey Club (HKJC) laboratory for confirmatory analysis on 3 October 2019. TC was not detected in Tube 7.
(vi) Tube 8 was used by NZRLS for confirmatory analysis on 11 December 2019. TC was not detected in Tube 8.
[14] A further sample, Sample 129274, was also taken on 28 September 2017 from ARYA, another horse trained by Mr Negus. Screening analysis showed trace indications of TC, but at such a low level that no confirmatory analysis was warranted. There was insufficient response from the analyte to be confirmable.
[15] A second blood sample was taken from MISSANDEI on 18 October 2017. Confirmatory analysis undertaken by NZRLS did not detect TC.
[16] Three hair samples were taken from MISSANDEI:
(i) The first hair sample was taken on 3 November 2017 and sent to RASL for analysis. RASL reported on 4 December 2017 that TC was not detected in this sample.
(ii) The second hair sample was taken on 25 January 2018 and sent to HKJC for analysis. This was not accepted by HKJC as it was not accompanied by a certificate clearing MISSANDEI from disease.
(iii) The third hair sample was taken from MISSANDEI on 31 January 2018 and sent to HKJC for analysis. HKJC reported on 13 March 2018 that TC was not detected in the third hair sample.
Informant’s submissions
[17] The Informant submitted:
[18] The charge has been proved as the evidence establishes that:
(a) Mr Negus was the trainer of MISSANDEI. This was confirmed by Mr Negus in his interview with RIB investigator, Mr Simon Irving.
(b) TC is a prohibited substance specified in the Prohibited Substances Regulations.
(c) Sample 129275, which was taken from MISSANDEI, did contain TC. This is proved by the certificate of analysis signed by Mr Rob Howitt, laboratory director at NZRLS.
Respondent’s submissions
[19] The Respondent submitted:
(a) The Informant has failed to prove the charge in that the forensic integrity of sample 129275 was compromised somewhere along the analytical process — it was not for the Respondent to prove where the contamination occurred but for the Informant to prove that the blood taken from the horse was not contaminated;
(b) The decision to send the B sample in breach of HRNZ Regulations is a complete defence to the charge; and
(c) In all the circumstances the Adjudicative Committee is obliged to exercise its discretion to dismiss the charge in accordance with its obligation to ensure the actions of the Informant were within its powers.
[20] With respect to the possibility of contamination, the Respondent stated the counter indicators to TC being in MISSANDEI’s system (ie that she was administered TC) are:
The high variations within sample 129275:
• Going from 80% to 20% within three days while degradation should have arrested in the frozen sample;
• Then another reported 50% TC level reduction (within two days) for the next frozen tube;
• Then an apparent increase, from the tube tested on 4 October, some six days later.
[21] The two last tubes from sample 129275 tested negative (each being tested at a different laboratory), when all chemical and enzyme action was arrested as the tubes were in a frozen state since screening.
[22] Elevated levels of Testosterone were not detected in sample 129275 nor in the sample taken on 18 October 2017.
[23] Blood taken on 18 October 2017 tested negative to TC while being within the detectability window of around 47 days.
[24] The hair sample taken on 3 November 2017 tested negative to a Limit of Detection (LOD) of 5 pg/mL (five parts per billion).
[25] The hair sample taken 31 January 2018 tested negative to a LOD of 0.2 pg/mL (or one part in 5 billion).
[26] The analytical process deficiencies include:
1.2. Failure to follow swabbing best practice.
1.3. Failure to prove chain of custody of the sample due to conflicting evidence as to how the sample tubes were stored in the security bag by Mrs Williams.
1.4. The use of unvalidated/unaccredited methods at NZRLS, which were then used to inform the RIU’s decision to send the B sample to RASL for testing. This is a clear breach of the IANZ standard.
1.5. NZRLS issuing incorrect reports (confirmation report for sample 129275), mishandling/mismanaging samples (hair sample taken 25 January 2018 that was rejected by Hong Kong), inconsistent and misleading advice regarding the disposition of the eight tubes that made up sample 129275, and incomplete provision of analytical data.
[27] The sending of the B sample to RASL was a clear and intentional breach of the Regulations and resulted in prejudice to the Respondent.
[28] Facts relied upon in support of the submission that the Committee should exercise its discretion to dismiss the charges in accordance with its obligation to ensure that the Informant acts within its powers and acts fairly are:
• The Informant’s reliance upon Dr Wan resulted in delays in hearing this matter (Dr Wan’s further statements of 24 October 2023 and 20 March 2024) and prejudice to the Respondent.
• The way the RIU conducted itself when attending the property of Mr Negus on 18 October 2017 by locking down the property, not seeking informed consent for its activities, and taking cell phones from employees requires the Adjudicative Committee’s denunciation.
• A critical change to the evidence of Mrs Williams which was known to the RIB and not advised ahead of the hearing caused prejudice to the Respondent. The witness’s change in evidence resulted from her being provided evidence (photograph) which she should not have been shown in circumstances where the chain of evidence was at issue.
• Failures to disclose relevant material, which caused prejudice to the Respondent.
Informant’s response to Respondent’s submissions
[29] In response to the Respondent’s submissions the Informant stated:
(a) There is no evidence to support a theory that sample 129275 was contaminated with TC during the analytical process.
(b) The other analytical results are explicable and do not negate a finding that MISSANDEI had TC in her system when sample 129275 was taken.
(c) There has been no abuse of process and there is accordingly no basis for the charge to be dismissed.
[30] The Informant further submitted that the Respondent had not identified at which point(s) the alleged contamination had occurred. Nor had he pointed to any evidence to raise an evidential foundation for the possibility that contamination had occurred at any of these points.
[31] The inference that the Adjudicative Committee was entitled to draw was that as there was TC in sample 129275 at the time it was tested by NZRLS, that MISSANDEI had TC in her blood.
The evidence
Informant’s witnesses
The taking of sample 129275
[32] Sample 129275 was collected by Mrs Williams and Dr Corser.
Mrs Kylie Williams
[33] Mrs Kylie Williams, a Racecourse Inspector, employed by the RIU and appointed in 2012, stated that on 27 September she went to the Respondent’s property. He was not present, so she spoke to him on his cellphone and informed him that she wanted to test two of his horses being MISSANDEI and ARYA. She arranged to return to his property the following day to conduct the testing.
[34] At 1.49pm on 28 September, with the assistance of the veterinarian Dr Alisa Corser and in the presence of the Respondent’s wife, Mrs Colleen Negus, a blood sample (129275) was obtained from MISSANDEI. As she had intended to test the two horses on the 27th she had prepared the sample identity record with that date and did not amend it to the 28th as it was “all prepacked”.
[35] Dr Corser obtained eight 8ml vials of blood, all numbered with 129275, which Mrs Williams placed in the Security Bag – two vials in each of the four pockets – and sealed in the presence of Mrs Negus. The same process was completed to obtain a sample from ARYA (129274). At 3.45pm that day she sent the two security bags in a Courier Post courier bag via the Parklands Post Shop, to NZRLS in Auckland. She completed a Sample Dispatch Record and emailed it to NZRLS.
[36] In her oral evidence Mrs Williams corrected her earlier written statement to the effect that the eight vials had been placed one in each of two pockets and three in the other two, which she described as 1133. She had in fact placed two in each pocket. She explained her statement had been made eight months after the event and it was on seeing a photo of the security bag being opened that she realised her error. She said 1133 had been the practice and it had been changed to 2222 subsequent to her taking the sample and the writing of her statement. She said the lay out of the tubes had no bearing on what was in the tubes. The bag is sealed; it cannot be unsealed.
[37] Mrs Williams explained that the tubes were pre-numbered/labelled and kept securely at her home or in her car in a locked garage. She said to do 12/15 horses in a day and in an unstable environment — more often than not they were in a paddock — to number the tubes, eight of them, was almost impossible.
[38] When questioned by Mr Langbehn, Mrs Williams stated she sealed the bag against her body and in front of the veterinarian and Mrs Negus. The only flat surface available immediately was the ground so she elected to do it against her body which she believed had no bearing on the sample itself.
[39] Mrs Williams said she had a container of sealed needles and that was where the veterinarian gets them out of. She explained that the buffer which holds the needle did not come into contact at all with the blood. It went from the vein through the needle and straight into the vacutainer. There was a needle holder.
[40] Mrs Williams stated that the tubes used were from the same manufacturing batch. These were used to sample 12 other horses the day prior to the testing of MISSANDEI and ARYA and no other positive results were recorded, nor were there any other instances using the buffer where a positive was returned for TC.
[41] Mrs Williams also addressed the later events in her written statement. On 18 October she returned to the Respondent’s property together with other RIU staff. She was tasked with coordinating any exhibits obtained from the property and she obtained a total of nine items including syringes, vials, hard feed and supplements. All of these items tested negative for TC and Testosterone. She obtained blood samples from seven horses on the property including MISSANDEI (85667) and ARYA (85662). They all tested negative to TC.
[42] On 3 November 2017 she obtained blood and hair samples from both MISSANDEI and ARYA. The hair samples were forwarded by NZRLS to RASL for analysis and were negative to Anabolic Steroid Esters.
[43] On 25 January 2018 she obtained another hair sample from MISSANDEI. The hair sample was to be forwarded by NZRLS to the Hong Kong Racing Laboratory for analysis, however she was later informed that before it would be accepted by Hong Kong it needed to be accompanied by a veterinarian certificate, clearing MISSANDEI from any disease. She obtained a further hair sample on 31 January 2018. This, together with an accompanying veterinarian certificate, was sent to NZRLS later that day. The hair sample result from Hong Kong was negative to TC.
Dr Alisa Corser
[44] Dr Alisa Corser gave evidence that she was a registered veterinarian and was at the Respondent’s property together with Mrs Williams on both 27 and 28 September 2017.
[45] She said that she took eight 8ml vials of blood from MISSANDEI all numbered 129275 which she handed to Mrs Williams. She completed the RIU Sample Identity record after checking the horse’s neck brand. The same process had been completed moments earlier with respect to ARYA (129274). This process was conducted in the presence of Mrs Negus.
[46] Mr Langbehn questioned Dr Corser as to whether she showed the full sealed unit to Mrs Negus. She replied that she would not have opened the needle in front of her. Usually she would bend down, pick up the needle, and open it. Usually the person is present, and they might be standing there but she did not make a specific effort to turn and show them.
[47] She agreed with Mr Langbehn that the needles are sealed at both ends with a registration number across the middle. She opened the needle in front of Mrs Negus immediately prior to taking the sample.
[48] Dr Corser was aware that the vials were labelled/numbered the day before and commented it was mainly because it was an efficiency issue as they were often viewing the horses or collecting samples in paddocks where it was difficult. There was no surface to write on. It just made things a lot more efficient.
[49] She said the tubes are vacutainers. She explained the use of the tubes as follows: “Because they’re vacutainer tubes, if you do happen to inject air or another substance, it does reduce the amount of vacuum that is created when you’re pulling the blood. Say the tube takes 10ml or 8ml of blood, if air has been introduced to the tube, it might only draw up to half a ml.”
[50] Dr Corser explained that to contaminate the inside of the tubes prior to use, you would have to directly puncture or break the seal and take the cap off the tube. She saw no evidence that the tubes had been tampered with.
The testing procedures
[51] Sample 129275 was first analysed at NZRLS.
Mr Rob Howitt
[52] Mr Rob Howitt, the General Manager of NZRLS, gave evidence. He said he has held the position of official race analyst and general manager since 2013 and has worked at NZRLS for 20 years. He has been employed as an analytical chemist for 23 years.
[53] He stated on 29 September 2017 a courier bag with ticket number EA 938 983 643 NZ, sent by Racing Investigator, Mrs Williams, was delivered to NZRLS. This bag contained two samples, including sample number 129275. The pouch had not been breached; all seals were intact. The sample consisted of eight tubes of blood. Two tubes were retained sealed in their sample security pouches as a reserve sample. Six tubes were removed from their sample security pouches as the primary sample to be used by NZRLS. This sample was analysed for the presence of permanently banned substances prohibited under the Rules of HRNZ. Screening analysis of this blood sample yielded results that indicated the possible presence of TC on 29 September 2017.
[54] Confirmatory analysis was undertaken in duplicate using two portions of the blood sample each taken from unopened tubes of the primary sample on 2 October 2017. These analyses confirmed the presence of TC in sample 129275. This finding was reported in a Certificate of Analysis dated 5 October 2017 provided to the RIU.
[55] Following his examination of the data from the confirmatory analyses, Mr Howitt telephoned Mr Godber, General Manager of the RIU on 4 October 2017. He advised Mr Godber that NZRLS would be reporting the presence of TC in sample 129275 the following day. He recommended that any analysis of the referee (B) sample should be undertaken as soon as possible due to the instability of anabolic steroid esters in blood due to enzymatic esterase activity. Mr Godber requested that RASL be asked to undertake the referee analysis of sample 129275 and that this be arranged without delay.
[56] On 5 October 2017 Mr Howitt formally requested that RASL analyse the reserve sample for the presence of TC. Reserve sample 129275 was sent to RASL the same day and the sample was shipped on dry ice. RASL confirmed receipt of the reserve sample 129275 on 6 October 2017 and confirmed that it arrived on dry ice with all seals intact.
[57] On 12 October 2017 he received by email a copy of the Certificate of Analysis from RASL confirming the presence of TC in reserve sample 129275, dated the same day. Mr Howitt forwarded this to Mr Godber on 13 October 2017.
[58] On 18 October 2017 a courier bag numbered 001559261 sent by Racing Investigator, Mrs Williams, was delivered to NZRLS. The bag contained nine items sealed in individual pouches of sample security bags. These included samples of feed, supplements and syringes. These items were analysed for the presence of TC and Testosterone and neither substance was found in any of these items. These findings were reported to Mr Godber on 8 November 2017.
[59] On 8 November 2017 Mr Howitt sent two hair samples numbered V366235 and V366237 to RASL at the request of the RIU. These samples were to be tested for the presence of TC and other anabolic steroids by segmental analysis. On 4 December 2017 he received by email copies of the Certificates of Analysis from RASL stating that anabolic steroid esters were not detected in these samples. He forwarded these certificates to Mr Godber on 5 December 2017.
[60] On 2 February 2018 he sent one hair sample numbered V366239 to the Racing Laboratory of the HKJC at the request of the RIU. This sample was to be tested for the presence of TC by segmental analysis. On 13 March 2018 he received by email a copy of the Certificate of Analysis from HKJC stating that TC was not detected in this sample. This was forwarded to Mr Godber on 14 March 2018.
[61] Sample 129274 from ARYA was also tested. On the screen analysis, there appeared to be trace indications of the presence of TC. A confirmatory analysis was not conducted. Because of the size of the analytical response, Mr Howitt said it would have been impossible to confirm. Because the sample was declared negative, no data pack was prepared.
[62] Mr Howitt stated a positive to TC was unusual. The first the laboratory had ever had.
[63] With respect to the negative hair sample, he stated when one sample type is positive and another sample type is negative, it is not regarded as exculpatory because there can be very good explanations for that. In this case, one possibility perhaps was TC collected in the bloodstream and when the hair came to be analysed, any TC that might be present was not detected because it was well below the limit of detection of the method.
[64] When questioned by Mr Langbehn as to whether fact that the second (18 October) and third (3 November) blood samples were negative, gave Mr Howitt any rise for concern, he replied, “No. It would indicate that we had possibly detected something at the tail end of an excretion and there was no further administration, so the animal was clear after that.”
[65] With respect to disclosure of the screening data, he stated he believed there had not been a specific request for it, which was not to say that it would be provided anyway. The laboratory provided all the data that was required to support the certificate of analysis in accord with the IFHA guidelines.
[66] Mr Howitt said he provided advice to the RIU that Testosterone esters are subject to deterioration in blood. Because he had just witnessed the degradation of TC in the sample, he believed his advice referred to both TC and esters in general. This was based on his observation that the apparent level on confirmation was much lower than the apparent level on screening and the knowledge of esterase activity causing steroid esters to degrade.
[67] The fourth tube was opened and used because Mr Howitt wanted to try and see if warming the sample would produce a better response. Esterase degradation occurs on storage, but also, he thought, on thawing. The first two tubes were done at room temperature, the fourth tube was in a beaker of hot water. That result then made him think either way you try and thaw these samples, they are degrading over time.
[68] If a B sample was to be analysed, all his advice was to the effect that the B sample should be analysed as quickly as possible, otherwise it might not be analysed in time, and would degrade. He said, “If B sample analysis is to occur, if referee analysis is to occur, it should happen soon. That was all my advice and you can’t do referee analysis on a B sample on two tubes that are part of the A sample. That’s not a B sample, is it? A B sample is forensically intact.” He added that his concern was the B sample – his laboratory could not open the B sample, so the B sample would need to be analysed as quickly as possible otherwise it might come back negative because of the degradation.
[69] With respect to there still being two tubes in the laboratory, his recollection was that the laboratory had a request for B sample analysis after the B samples had already been tested. His conversation with Mr Irving was, “There’s an A sample, there’s a B sample. The A sample’s been tested; the B sample … there is no C sample. I was aware that we had more sample left of the A sample but that’s not a reserve sample, that’s not suitable for referee analysis. For a start, it’s been taken out of its pouch, so the forensic integrity is diminished. The B sample had been tested so a request for B sample analysis was too late; the B sample had already been sent and tested.”
[70] Mr Howitt explained when the tubes come to the laboratory there are eight tubes. The laboratory retains two tubes for independent analysis and six tubes which is for the laboratory’s use for analysis. That is how the laboratory had always operated. The laboratory had never, ever had a request before to send A samples to another laboratory after a B sample had been confirmed.
[71] The absence of the injection time in the report was said by Mr Howitt to be immaterial. There was no reason for the report to be considered unreliable.
Recall
[72] Mr Howitt also gave evidence in response to that of Mr Reeve. He stated that the inconsistencies in the reported analyses that Mr Reeve identified could be explained. The sample taken from one tube and used for screening indicated the presence of TC at a level probably between 100 and 300pg/mL. The two tubes analysed as part of the confirmatory procedure were shown to contain TC but at a lower level. This could be attributed to the unstable analyte degrading following storage at -80 and during the subsequent thawing process. The reserve sample that was frozen on receipt and then sent with seals intact to RASL for referee analysis was also shown to contain TC. The apparent level of the reserve sample was sufficiently similar to that of the samples analysed as part of the confirmatory analysis at NZRLS. He explained that he meant by “sufficiently similar” that the apparent levels did not indicate that the levels were different when the samples were taken. He believed it was not plausible to conclude that these findings were as a result of contamination of multiple tubes at two laboratories.
[73] With respect to possible contamination of the sample at the laboratory, Mr Howitt stated, “We have procedures in place to avoid any chance of contamination. When it comes to confirmatory analysis, we’re very strict. I supervised this confirmatory analysis, I witnessed almost every part of the procedure and, most importantly, the preparation of the spike samples. The spike samples are prepared on a different bench. The reference material used is diluted and it was diluted in a different room. That diluted solution was taken to a bench, the blank plasma used for spiking were spiked at a different bench. The tubes are all new or freshly cleaned. We take every step possible to avoid contamination.”
[74] Mr Howitt added that the reason the laboratory did two sets was to verify that contamination had not occurred. He added, “The blank samples are blank, the spike samples are positive, and the test sample is positive.”
[75] With respect to Mr Reeve’s suggestion of inadvertent contamination, Mr Howitt said, “For that to be the case, it would need to have happened for the minimum three tubes at our laboratory and then the intact reserve sample would need to have been contaminated at the Melbourne laboratory.”
[76] He further commented on this issue but with respect to storage, “Despite the degradation, we still managed to confirm the presence of TC, albeit it’s fairly obvious that the level had gone down, there was still sufficient there for us to confirm the sample. In that regard, our storage was not deficient.”
[77] Mr Howitt disputed Dr Dunnett’s suggestion there had been a deviation from the AORC guidelines and his further suggestion that it was “more likely than not the detection of TC has arisen from contamination with the analytical process.” He denied there were methodological and procedural inconsistencies or deviations from best practice. He disputed Dr Dunnett’s comment there were conflicting analytical findings.
[78] With reference to the 500pg/mL spike being much higher than the 200pg/mL sample, he said in an ideal world there would be a closer match but because it had no effect on the analysis and because the criteria did not require the laboratory to perfectly match the concentration, there were no inconsistencies that would affect the validity of the result. There was no deviation from the AORC guidelines.
[79] When questioned by Mr Langbehn, Mr Howitt said he was surprised by the degradation, stating, “The apparent level had gone down. To compare 30 to 50 … but 200 to 50 there was a good indication that there had been degradation of the sample. We’re looking at ballpark figures. The response was much lower for confirmation than we would’ve expected no doubt due to the degradation of TC. That surprised us a bit because we didn’t think it would degrade that quickly at -80 degrees. I also think that the thawing process is an important part of where degradation occurs.”
[80] Mr Howitt agreed there was degradation of about 40 to 44% between screening on 29 September and confirmation testing on 2 October, which was 72 hours later, notwithstanding the product was in a freezer. He stated that that assumed the degradations all occurred at -80, whereas the thawing process could probably account for a large degree of it.
[81] Mr Langbehn referred to the Moeller study that stated that thawing/freezing did not impact upon levels. Mr Howitt pointed out this study considered Testosterone not TC, which was an ester. However, he was unable to identify a specific study that demonstrated that freezing and the thawing affects the quantitative levels. He said racing chemists had known for a long time that steroid esters are subject to esterase activity which degrades them, and it can occur when a sample is frozen. That was just “anecdotal”.
[82] Mr Howitt said the laboratory’s standard operating procedures were validated and agreed to by IANZ. The screening method was validated such that samples were analysed as soon as possible. They were aware that degradation occurs. When samples come in for anabolic steroid testing, the first thing the laboratory did was to undertake that analysis as fast as possible to maximise the chance of detection. Following screening, storage at -80 was better than any other measure, so it was stored at -80.
[83] With respect to the freezing and thawing process that had been used, Mr Howitt said it was not validated and had not been approved by IANZ. He later stated when Mr Langbehn questioned him as to when the laboratory method had been accredited for TC, “Our methods are accredited under two scopes. There’s a fixed scope and a flexible scope. This method [the MM70 method] was accredited under our flexible scope for a couple of years or a year and a half prior to the IANZ assessment. The IANZ assessment is when our methods are then formally assessed by an external technical expert. We were getting together a validation package for IANZ. We’ve done lots of validation work for years, but this particular validation work was for TC and lots of other drugs as well.”
[84] He acknowledged that with respect to mass spectrometry data, a graph in the first report at page 16 stated “criteria not met”. Mr Langbehn submitted this meant it was a false report.
[85] Mr Howitt responded that the graphs were taken from spreadsheets which had to be reformatted to get them on to the page. The result “criteria not met” was as a result of a function, and the function on the spreadsheet cancelled the “Yes’s”. He explained, “When we were formatting the spreadsheet for inclusion into the report, a reference was lost in that cell, so it incorrectly had an output of criteria not met.” The report had been checked, and this was missed. A day or so after the report was sent, this was corrected, and Version 2 came out which had criteria met.
[86] With respect to an estimate of the TC as being around 200pg/mL, he agreed he had said that “screening indicated a very approximate concentration of around 200pg/mL.” He explained this was very inaccurate, commenting, “The comparison is if I’m asked how much is in this sample, which I was by Dr Terry Wan for his analysis, I look at this data and go, the sample is very close to the spike in terms of its areas. The only estimate I can give is that it’s around the same as the spike notwithstanding the variations in ion suppression and extraction efficiency which could, in fact, mean that the actual level between the 100 and 300 possibly outside. That’s what this information was provided for.”
[87] When cross-examined, Mr Howitt commented that the purpose of testing tube 6 was to assess the stability of the sample and inform the laboratory’s recommendation that the reserve sample be sent for referee analysis without delay.
[88] Mr Howitt said, “B sample requests sometimes take a long time so I simply told Mike Godber at the RIB that in my view, the B sample analysis should be expedited.” He later added, “I believe I phoned him [Mr Godber] and said, We have a positive, we’re going to be declaring a positive for this substance. We’re concerned about the stability of the sample. We believe that if referee analysis is to occur, it should happen as soon as possible.”
[89] Mr Howitt was aware of but was not part of the decision making process with respect to the sending of the B sample. He was advising the RIU because they were his customer, and that if they wanted the B sample analysed properly, it needed to go. He arranged for it to be shipped on dry ice to Australia as soon as physically possible.
[90] When questioned about the Testosterone level, he said it would have been judged to be below the threshold for both horses.
[91] With respect to disclosure, Mr Howitt said, “The International Federation of Horse Racing Authorities produced guidelines for laboratory documentation package. This is the information that laboratories are required to produce in defence of a certificate of analysis that reports a positive finding. That is the basis of all our disclosure. We disclosed what that requires and nothing else, however, in exceptional circumstances such as this, we have disclosed screening data, for example.”
Mr William Salinas
[92] Mr William Salinas, a racing analyst at NZRLS, was called to give evidence. He stated the samples 129275 were received by him at the laboratory on 29 September 2017 at 10am with seals intact. He confirmed that the two samples that were retained as the reserve sample were retained inside the security pouch in the walk in freezer. The other six tubes were initially placed in a refrigerator.
[93] Upon the indication of the presence of TC, all the samples, including the reserve sample, were placed in a freezer at -80 at the direction of Mr Howitt. A confirmatory analysis was conducted on Monday 2 October 2017 and the processing of the data concluded on 4 October and reported in a certificate dated 5 October which was provided to the RIU.
[94] He said all samples that were suspected to be positive would go into the freezer because in the freezer conditions any kind of degradation of the samples was less likely to happen. The idea was to prevent any kind of degradation or to stop degradation in some ways.
[95] From the time of receiving the samples to the point at which the confirmatory analysis was completed, Mr Salinas said he not aware of any basis or any way in which the sample could have been contaminated with TC. In his understanding, it was “impossible”.
Mr David Batty
[96] The Informant called Mr David Batty, the Laboratory Director at RASL. He stated on 6 October 2017 the laboratory received two tubes of blood sealed inside a numbered security satchel. It was in good condition with all seals intact. The laboratory issued a certificate on 12 October 2017 detailing that sample 129275 contained TC.
[97] On 13 November 2017 the laboratory received two hair samples inside a numbered security satchel. Anabolic steroid esters were not detected in the sample. A further sample consisting of two hair samples, was received on that day and again anabolic steroid esters were not detected.
Recall
[98] Mr Batty was recalled on 21 March 2024.
[99] He had read the statement prepared by Mr Howitt, dated 1 March 2024 and agreed with its contents. It aligned with his experience with both qualitative and quantitative analysis of biological matrices. Both the testing in the Australian laboratory and the New Zealand laboratory was only done in a qualitative manner. It was never intended for the results to be interpreted in the way that they had been (by Mr Reeve for the Respondent).
[100] He explained that the few expert reports that he had read were basically trying to compare the qualitative results in terms of TC concentration from one analysis done in one laboratory from another analysis done in another laboratory and make some inferences or comments as to levels going up or down. He commented, “The fact is, you just can’t do that and for all intents and purposes, those levels [the levels from the New Zealand confirmatory analysis and the levels from the Australian confirmatory analysis] are pretty much the same. You’re not allowing for extraction efficiencies, differences in ion suppression. I know from my own experience here in the laboratory in over 40 years is when we’ve had the opportunity to compare accurate qualitative results with results that are just obtained in a qualitative manner, they can differ by sometimes two, three or even tenfold.”
[101] The qualitative results were never intended to be used in such a way to show that TC concentrations were either going up or down in the set levels. All they showed was that TC was present. The test methods were designed to confirm whether or not the drug was present. Trying to compare levels was not appropriate or justified.
[102] Mr Batty confirmed to Mr Langbehn that they had not done any quantitative analysis.
The Informant’s experts
Dr Andrew Grierson
[103] Dr Andrew Grierson, the chief veterinarian of HRNZ and NZTR, described TC. He stated that he held a degree in biochemistry and physiology. He said Testosterone was an androgenic agent, but it was also an anabolic agent. It was a banned substance under the Prohibited Substances Regulations. It provides increased muscular growth by stimulating the genes that make muscles grow better. It also alters behaviour as well. He said that Testosterone is around in nature and certain anabolics are, but TC is not; it’s a synthetic compound, it is only made by man.
[104] Dr Grierson believed TC could be detected in blood from a horse for any time up to eight weeks and possibly longer. He added that it might be less as well, but based on human work, two to four weeks was the time for when it would be redone, so looking at human elimination half-life this would normally be multiplied by a factor of 6.8 to give a fairly low level as to where it no longer would be detected. This he estimated to be 48 days.
Mr Paul Zahra
[105] Mr Paul Zahra, a racing chemist and the Scientific Manager at RASL in Melbourne, presented a written brief in which he expressed the view that it was not entirely unexpected that TC had not been detected in a hair sample taken from a horse whose plasma sample had previously tested positive with TC, stating it was likely due to the TC being present in the hair at a concentration lower than the limit of detection of the method of analysis. The estimated limit of detection for TC in RASL’s method of analysis was 5pg/mg. He referred to two studies where a horse that had been administered Durateston (a mixture of Testosterone propionate, Phenylpropionate, Isocaproate, and Decanoate) to a female horse. Post administration testing had shown the presence of the Testosterone ester in plasma samples, while its mane hair had not shown the presence of that Testosterone ester.
Dr Emmie Ho
[106] Dr Emmie Ho, a chemist and currently in charge of the Racing Laboratory of the HKJC, gave evidence as to the preparation and testing of the hair sample taken from MISSANDEI. She expressed a similar opinion to that of Dr Wan agreeing with his statement that “if a horse has been exposed to TC, whether or not this substance can be detected in the mane of the horse covering the period of exposure would depend on a number of variables, including the amount, route and frequency of such exposure, as well as the detection limit of the method used for such detection.” It was therefore not unusual to obtain different results from analysing two different biological matrices collected from the same horse.
Dr Terence Wan
[107] Dr Terence Wan was called by the Informant. His statements of 24 July 2018 and 24 October 2023 were read into evidence. At the time of his first statement he was the Head of the Racing Laboratory at the Hong Kong Jockey Club and by the time of his second statement he was Chief Advisor, Doping Control of that Club.
[108] Dr Wan also produced a third statement dated 20 March 2024 in which he commented on the reports from Professor Shaw, Mr Reeve and Dr Dunnett. The Respondent objected to this statement being admitted, but as the hearing had been delayed substantially (some months) by Dr Dunnett’s non-availability, and as Dr Wan was now being required to work within Dr Dunnett’s time frame, we allowed it to be admitted into evidence, but stated the fact that the Respondent had not had the opportunity to cross-examine Dr Wan would be considered as a matter of weight. Both Dr Dunnett and Professor Shaw had had the opportunity overnight to consider Dr Wan’s third statement and both commented on it when giving their evidence. They were thus able to respond to any criticism Dr Wan had made of their reports.
[109] The Informant did not rely on this third statement, despite the Respondent’s expert witnesses referring to it. We have not considered it in determining this matter.
[110] Dr Wan stated in his first statement that the 2 February 2018, Hair Sample V366239 (and its corresponding B-sample) was sent by the NZRLS to the Racing Laboratory of the HKJC. The sample was received on 7 February 2018. He understood that the sample had been collected on 31 January 2018 from the mane of the same horse that provided blood sample 129275 on 28 September 2017, or about four months earlier, and that low level (approximately 50 to 200 pg/mL, ie, approximately 0.05 to 0.2 mcg/L) of TC had been reported in blood sample 129275.
[111] The A sample was analysed for the presence of TC. Fifteen consecutive 2-cm segments of this mane hair sample were individually analysed. Assuming the hair sample had been cut as close as possible to the skin, and since the growth rate of mane hair has been reported to be about 2.2 to 2.5 cm per month, these segments in total should cover a period of at least 12 months from the date of hair collection. Based on the reported maximum growth rate, these segments should cover the period from about eight months before to about four months after the date of blood sampling. All segments tested negative for TC.
[112] Since the quantity of hair sample used for the analysis in each of the 2-cm segments and in the control sample was about 50 mg, given the negative result obtained, the amount of TC that might be present in each of the 2-cm segments could be estimated at no more than 10 pg, or no more than 0.00001 microgram. Based on the monthly growth rate of mane hair of about 2.2 to 2.5 cm, a 2-cm segment would represent about 24 to 27 days of growth. As long as no more than 0.00001 microgram of TC had been incorporated into 50 mg of the mane within any period of 24 to 27 days, this would explain the negative results obtained in this analysis.
[113] In his first statement Dr Wan stated the incorporation of drugs into hair is substance-specific. To his knowledge, there had not been any controlled administration study of TC in the horse involving the analysis of post-administration hair samples. Therefore, it could not be ascertained whether or not TC could be incorporated into, and be detected from, the mane of the horse after it had been exposed to TC (or Testosterone cyclopentyl-propionate).
[114] After referring to named studies, Dr Wan stated that in his opinion, if a horse had been exposed to TC, whether or not this substance could be detected in the mane of the horse covering the period of exposure would depend on a number of variables, including the amount, route and frequency of such exposure, as well as the detection limit of the method used for detection.
[115] He expressed a similar opinion in his second written statement at para 8 stating, “If a horse has been exposed to TC, whether or not TC can be detected in the hair of the horse covering the period of exposure would depend on a number of variables, including the dose, the route (which does not have to be intramuscular) and frequency and timing of hair sampling, as well as the detection sensitivity of the method used for such detection.”
[116] Dr Wan’s conclusion in his first statement was, “In the present case, TC had been identified in Blood Sample 129275 collected on 28 September 2017, whereas it could not be detected in the relevant segment(s) of Hair Sample V366239 collected on 31 January 2018 from the same horse. Since it is not unusual to observe a positive finding from the analysis of one biological matrix and yet a negative finding from the analysis of another biological matrix collected at about the same time from the same horse [“covering the same exposure window” was the expression used in the second statement], there is nothing abnormal with the above results. In the relevant chapter on blood analysis of the International Standard for Laboratories published by the World Anti-Doping Agency [WADA] (Version 9.0, 2 June 2016, Section 6.2.4.3), it is clearly stated that testing results obtained from hair or other biological material shall not be used to counter adverse analytical findings from blood.”
[117] His conclusion in his first statement was repeated in the second, with Dr Wan adding there could be numerous reasons for a negative result in hair, and over interpretation of negative evidence should always be avoided.
[118] In his second statement Dr Wan referred to the HKJC’s testing of one tube of blood of sample 129275 two years later with a negative result. He commented at para 9, “Since our analysis was conducted more than two years from the date of blood sampling, degradation (including enzymatic hydrolysis) during prolonged storage and transportation would explain the negative result as compared to the consistent findings of TC in all six tubes of blood sample 129275 analysed by the other laboratories on separate occasions within two weeks of sampling.” When questioned, he described the latter negative result as “not surprising”.
[119] Dr Wan continued by stating at para 9 of that statement, “Since TC was consistently found in 2017 in the blood of different tubes, external contamination of different tubes of blood sample 129275 with TC either during or after sample collection would unlikely be the cause of the findings.”
[120] In his oral evidence Dr Wan said with respect to WADA, that he had published a paper that adverse analytical findings in different matrices depends on both various and different variables so that it was not unusual to see one matrix, the result of which is positive; another matrix the result of which is negative. WADA had tried to clarify the situation that from time to time there could be actually positive cases or adverse analytical findings coming from human urine or human blood or serum or plasma of the blood but not in other matrices such as hair. He believed the WADA principle applied equally to race horse samples.
[121] Dr Wan elaborated stating, “There are many variables which is why there could be occasions where, let’s say, for example, two samples of different type – hair and blood in the present case – there could be occasions where both samples could be detected positive for that particular drug. There could be also occasions where both samples were detected negative. This is after the substance has eliminated from the body and there could be occasion [sic] where one matrix, the finding was positive; another matrix from the same horse, the finding is negative. It’s not unusual, it happens very often, and I cover all scenarios – both positives, both matrices negative and one matrix positive, another matrix negative and vice versa.”
[122] Dr Wan said it was always his opinion that there was no requirement to have more than one matrix of samples collected from the horse to be tested positive in order to show that the relevant horse had been exposed to that particular substance.
[123] With respect to contamination, he said, “I haven’t seen the blood bag when it’s collected but my understanding usually these vacutainer tubes are sealed and then you have to puncture each and every one of them to collect blood. So even if the bag covering all eight tubes or even the interior of the bag is contaminated, it doesn’t mean that all the tubes inside have to be contaminated, especially that the general procedure is you use something called a butterfly to actually introduce into the vein of the horse and then you start collecting one tube at a time so that if that equipment is contaminated, it’s quite likely that some blood tubes are contaminated but very unlikely because they keep diluting the contaminant. All the blood tubes will be contaminated more or less to the same extent. That’s very unlikely.”
[124] Because there were consistent findings from different blood tubes of the same sample by different laboratories on different occasions, Dr Wan said that meant each and every one of the six blood tubes or all these blood tubes had to be contaminated, which was quite unlikely from a blood sampling procedure.
[125] With respect to the testing of the reserve sample, he said in some jurisdictions the B sample is sent away without the knowledge of the relevant individual or the trainer of the relevant horse. “It happens automatically analysing the B sample before the results are announced.”
[126] With respect to the negative blood result 20 days later, he said TC could be eliminated within a couple of days. He explained, “The ester is very unstable which is why, throughout the industry in horse racing laboratory, understand to try to test Testosterone esters or anabolic steroid esters in the blood because of the presence of the esterase – the enzyme – you have to do it very quickly. Then, actually, naturally the concentration of the Testosterone ester will degrade very quickly.”
[127] When challenged by Mr Langbehn as to the basis for this conclusion, Dr Wan said, “It’s my conclusion from my years of experience analysing similar substance in blood. As I mentioned in my statement, as far as I know, there are no studies of applying TC in different doses, in different routes to a horse and then collect a blood sample for analysis. That’s why, as far as I know, there is no one in the world that would have objective scientific information about how much time TC would remain in the horse after different types of administration experience.”
The Racing Investigators
Mr Simon Irving
[128] Mr Simon Irving, Racing Investigator, stated he was at the Respondent’s property on 18 October 2017 together with other RIU staff. When he told Mr Negus of the TC positive test, Mr Negus’s response was one of disbelief. Mr Irving produced a recording of the interview with Mr Negus. Mr Negus’s diary recorded MISSANDEI returning to work on Mr Negus’s property on 23 July 2017.
[129] With respect to the B sample, in the interview with Mr Negus, Mr Irving said that he said to Mr Negus that there was a reserve sample available to Mr Negus to be tested which, as he knew now, was actually incorrect because that reserve sample had already been sent. He was under the impression when he interviewed Mr Negus that the RIU had sent a sample over to Australia to be peer reviewed or for confirmatory analysis but there was still a B sample available to Mr Negus. He had asked Mr Negus if he wanted that sent, and Mr Negus had replied, “No.”
[130] Mr Irving agreed with Ms Thomas that it was unusual for the RIU to send the B sample for testing. He said there had been a discussion between Mr Howitt at the laboratory and Mr Godber with “the information being that that TC degrades at such a rate….” In Mr Irving’s nine years as an Investigator, a B sample had not been sent out of the laboratories without discussion with the owner or the trainer.
[131] With respect to the decision-making regarding the B sample, he said he would have been consulted on it. He thought the discussion was between Mr Howitt and Mr Godber. There would have been some legal advice sought at the time, and perhaps Mr Rennell (HRNZ CEO at the time) might have been consulted as well and Mr Grimstone as the Investigations Manager. The decision to send the B sample against the Regulations would have been because of the degradation.
[132] Mr Irving said as part of the discussion he agreed if it was going to degrade at the rate that they were informed it would, then it would have been rendered useless within a short space of time and therefore he thought it was a sound idea to send the B sample. He did not believe it was important that Mr Negus be informed straight away that the B sample was going to go to Australia.
[133] Mr Irving believed it was not appropriate to wait for the certificate to be issued as that could have taken some days. He thought Mr Howitt said that he had that conversation with Mr Godber the day before they issued the certificate for the A sample so, therefore, that decision was made around that time. By the time they got to Mr Negus’s property to interview him and do that part of the investigative process, it was probably three or four days after the certificate was issued, if not maybe five days, although he later agreed with Mr Langbehn that the RIU visit to Mr Negus’s property was on the 18th and the certificate for sample 129275 was issued on the 5th.
[134] Mr Irving disagreed with Mr Langbehn that the B sample had been sent to shore up the case. He said he thought it was for “peace of mind”. Mr Irving said if the substance was going to degrade to the point it would be useless as time goes on, which was the information they were provided, then delaying that analysis would be “wasteful”. If it was cobalt, which did not degrade over time, then there would have been no discussion about getting the B sample tested because if cobalt was the positive then it was not going to degrade. The RIU decision making was influenced purely around the information received from NZRLS to the effect that this product would degrade very quickly. He agreed with Mr Langbehn that the prosecution would be based on the certificate received from the New Zealand laboratory on the 5th.
[135] Mr Irving said he thought it was part of the A sample that had been sent over for peer review type testing rather than B sample testing. He thought the B sample still existed which was why he asked Mr Negus in the interview did he want it sent.
[136] When asked why Mr Negus was not questioned until the 18th of October which was some 13 days after the certificate was issued and why was Mr Negus not spoken to on the 6th or, indeed, later on the 5th once the certificate was issued and then he would have been in the position of having a B sample that could be sent to the lab, if he so wished, Mr Irving said logistically it was too difficult to act on it that quickly. To get a small team together to go and do the necessary interviews and to make that part of the investigation took some time and resources. It was not a matter of his just turning up on his own there and saying to Mr Negus, they had a positive to TC, there was more to it, and it had to be done properly.
[137] Mr Irving described his role as a conduit. He passed on the Respondent’s requests for information by pushing the forward button to NZRLS and if that needed to be on forwarded to the Hong Kong laboratory or to the Australian lab, then he had to ask NZRLS to do that.
[138] He was only aware sometime later on 9 May 2018 that there were still two further tubes as part of the A sample held at the laboratory when NZRLS came forward after requests to say there is one or two that could still be tested and that was one of the tubes that went to Hong Kong.
[139] With respect to the taking of hair samples by Mrs Williams, he said he co-ordinated this. She took a hair sample using the kit that came from Australia and their instructions. She took a further hair sample that was rejected by the Hong Kong laboratory on the grounds that there was not an infectious disease form filled out by a veterinarian. The certificates had come back from Australia and HK as negative to TC.
[140] The first hair test – the one taken on 3 November – was at the initiative of the RIU. They had information that possibly the hair sample could benefit the investigation by indicating when there had been TC in the horse.
[141] With respect to the visit to the Respondent’s property on 18 October 2017, he said the RIU had searched the Respondent’s stable block and training facility as per the Rules. He did not believe that the RIU had put someone at the front gate stopping people coming in or stopping people going out. He informed Mr Negus why they were there, what they were doing, who they needed to speak to, and had had “a reasonably civil discussion and interview”. Mr Negus was very compliant, as he would expect from Mr Negus. He told Mr Negus they were looking for any exhibits that might explain how TC could have got into the horse’s system.
Recall (1)
[142] Mr Irving was recalled and questioned as to his “off the record” conversation with Mr Negus, which he believed would have been some time in 2019. He said it was a general discussion around issues that the Respondent had picked up on through his investigation into the case. Mr Negus had shown him the photograph from RASL which showed the two single tubes in their pouches, and Mr Negus said it was contradictory to what Mrs Williams had written in her statement. He remembered saying, “If that is the case then there’s an issue and at some stage, I’d have a look at it and if it was proven and we went to a hearing, then that would be thrashed out.” He explained that he meant it would be decided by a tribunal.
[143] Mr Irving did not recall saying, “I wish it would all go away”, but there were a lot of communications between Mr Langbehn, himself, the laboratories, Hong Kong, Australia at the time. It was very time consuming, and that would be what he was referring to. He continued to believe there was TC in the sample and his comment was not alluding to that.
[144] Another year or two later he discussed the configuration with Mrs Williams, and she said it was around the time of the testing of MISSANDEI that they were going from 1133 to 2222 for race day samples. She said they had sometimes 44 for blood samples on trials day and 1133 for Out of Competition. It became apparent to him that when Mrs Williams packaged that particular sample it was 1133. She had changed her statement to that effect at the hearing when giving her oral evidence.
Recall (2)
[145] Mr Irving gave evidence about the visit to the Negus property on 18 October 2017. He said there were six RIU personnel present: himself; Mr Grimstone; Mr Allison; Mr Ydgren; Mrs Williams; and Mr Lamb.
[146] With respect to the blocking of the driveway, he said, “In our briefing of the staff listed, there was no instruction to block the driveway or to prevent anyone from entering or leaving so, no, that wouldn’t have happened.” This had never been the RIU or RIB practice in his nine years employed by them as an Investigator, and there was no provision in the Rules for this to be permitted. When questioned, he said, to his knowledge, no one was blocking the driveway. However, he was inside dealing with Mr Negus at the time.
[147] There were no HRNZ personnel assisting the RIU on that day and Mr O’Leary’s comment that someone was at the property wearing a blazer with the HRNZ logo on it was incorrect.
[148] He did not request that Mr Negus give him his cellphone, nor did he have any conversation with him about his cell phone and its contents. There was no reason to take cellphones or to examine them. There was no instruction given to the investigation team in relation to requesting cell phones; it was not part of the investigation.
Mr Neil Grimstone
[149] Mr Neil Grimstone, the RIB (formerly the RIU) Manager Integrity Assurance gave evidence as to 18 October 2017. He said he was in charge of the Negus investigation and visited the Respondent’s property along with Racing Investigators from the RIU.
[150] Mr Grimstone confirmed that Mr Webster and Mr Tate were on the property that day and were interviewed, but categorically denied any cellphones were seized or examined. There was no need to, as the allegation related to a blood test from sometime earlier.
[151] He said they were on the property to investigate the positive swab which would include a search and interviewing the various people that were in and around the property and who were employed by Mr Negus. They were looking for any substance there that may have Testosterone in it or labelled.
[152] He agreed with Ms Thomas that they had a power to be on the property under the Rules and a power to be able to search the property, but not persons.
[153] Mr Grimstone said that the property was never blocked. No one was stopped from entering or leaving. There was not a spare person to man the gate. He also said there was no car parked at the gate blocking the driveway. To his knowledge, the RIU or the RIB had never stopped anyone from entering a property whilst they undertook inquiries.
[154] No HRNZ personnel were assisting on the day. There was no member of his staff who was wearing a blazer with a HRNZ logo.
Respondent’s witnesses
Mr Bruce Negus
[155] The Respondent gave evidence. His written statement which was read into the evidence first described the events of 18 October 2017. He said, “A squad of cars drove up my drive and about 10 people proceeded to take control of my premises.” He went inside with Mr Irving and was told of the irregular findings for MISSANDEI and the trace of TC found in ARYA. He said he had never been the subject of an investigation like this and was overwhelmed. His only response was to co-operate and trust what he was told. He said a senior member of the RIU, unbeknown to him, had positioned himself at the entrance to his property to prevent anyone coming or going. He was not advised of his rights by the RIU and was not asked to consent to the search of his stables. He was offered the B sample to get independently analysed.
[156] Mr Negus said the decision to send the B sample for analysis was a unilateral decision by the RIU. When the decision to have the B sample tested was made, he was told by the RIU it had already been done and there was no more blood or tubes left, capable of being tested. He now knew that was not the case as in May 2018 he was advised that two tubes remained centrifuged and stored at -80 degrees.
[157] Mr Negus then referred to the contradictory science that arose out of the subsequent negative samples from MISSANDEI and ARYA. He criticised the conduct of the RIU/RIB in this case, proffering the example of Mrs Williams not amending the date on the paperwork when the testing was delayed for a day, stating the case had been characterised by breaches of Regulations, Rules and unsafe and unreliable practices which tainted the Industry.
[158] Mr Negus also made reference to a subsequent discussion with Mr Irving about two years after the finding of the positive to TC, where for the first time Mr Irving became aware of the 2222 / 1133 issue with the tubes in the pouch. He believed Mr Irving had said, “They must’ve taken them all out and put those two back in their pocket.” Mr Negus said if they were put in 2222 and here’s a picture of them 11, it seemed the only rational explanation that they had been taken out. He distinctly recalled Mr Irving saying to him after they discussed the photo of tubes in the pouch, “If I was running this case, I would’ve shaken hands and walked away years ago.”
[159] Mr Negus, when cross-cross-examined, said there may have been only six RIU staff present on 18 October. He described them looking at the feed, looking in the rubbish for syringes without asking him. He agreed this was reasonable and that he would have agreed to the search if asked.
[160] Mr Negus said he was not personally aware that there was someone from the RIU at the gate, but he had subsequently been told there was by Mr O’Leary, who was now deceased, but he understood Mr O’Leary had written a letter of complaint to HRNZ.
[161] Mr Negus agreed that he was happy to answer Mr Irving’s questions on the day and that his answers would not have been different if he had been given a rights caution or something similar.
[162] With respect to the B sample, Mr Negus said he did not ask for it. Mr Irving had said they were getting a second sample done just for “our own peace of mind, I guess, but you still have that option.” Mr Negus said he was also conscious of the fact that the owner would be offered the same advice or offered that opportunity, but his decision “not to fire ahead with it” was because he “absolutely believed the RIU and absolutely believed the laboratory.”
[163] With reference to the fact that Mr Grierson’s evidence was that there was a seven or eight week window for TC to have been in MISSANDEI’s system, Mr Negus said it was not until he got the negative hair test back and learnt more about the phlebotomy and handling of the samples, that led him to believe either that Mr Casey must have done it, or it must have been done at his property by somebody else, which was “a little injurious” to their relationship.
[164] He believed if it had happened in his care, there would have been a trace when MISSANDEI was retested. If it had happened in Mr Casey’s care, he could not speak to that.
Mrs Colleen Negus
[165] Mrs Colleen Negus, a HRNZ licensed Amateur Driver, and the wife of the Respondent, gave evidence as to the day MISSANDEI was tested (28 September 2017). She stated that she held the two horses (MISSANDEI and ARYA) while the blood sampling took place. She did not object to or express concerns about the process, or the paperwork associated with it, and wrote and signed her name on the swab card for MISSANDEI and was given the pink copy by Mrs Williams. She said the tubes were pre-numbered and when she signed the declaration on the form, she thought she was signing to say that the number on the top of the right hand side was exactly the same as the number on all the tubes. She had not raised any issue about wanting to see the needles or wanting to see the vials, but she had checked that the numbers matched. She did not see Mrs Williams seal the samples.
[166] There was nothing about the numbering, collecting, packaging and sealing that concerned her on the day. Mrs Williams had conducted the process in her usual manner, which was quite quick. Mrs Williams had not described the process to her before taking the blood samples.
[167] Mrs Negus said in her written statement that she had not given either MISSANDEI or ARYA any TC or any other steroid and that she did not give injections. She knew that they did not use these steroids or any other steroids in their stables.
Mr Terence Webster
[168] Mr Terence Webster gave evidence with respect to the RIU’s activities on 18 October 2017 at Mr Negus’s property. He said he was already at there when “they [the RIU] come out and blocked the driveway so no one could enter or leave the property as they did their unauthorised search of the stables and property. Also they demanded everyone to hand over cellphones, which we all refused to do. So in the end we were told to leave all cellphones in plain view. Then we were all interviewed in private and asked to make statements.”
[169] He agreed with counsel for the Informant that he did not see the RIU stop anyone entering the property but it was “blocked” in that there was a car in the driveway and the gate was shut so no one could go in or out. The gate could not open because of where a car was parked. He thought it was deliberately parked there. He agreed it was standard practice on a property with animals to keep the gate closed, but not blocked. But at the time he thought it was usually left propped open with an old tyre.
[170] Mr Webster said it was Mr Lamb (an employee of the RIU) who had told him to hand over his phone. When questioned by the Adjudicative Committee, Mr Webster said he was not told that he could not use the phone, but they did not say he could use it either. He did not think he could. He said he had not tried to use the phone but had put it in plain view and stepped away from it. He had had to go and take care of the horses.
Mr Geoffrey Tate
[171] Mr Tate’s written evidence was that “a car” was parked in the driveway blocking the gate to Mr Negus’s property on the day it was visited by the RIU. He said he was questioned by a Racing Investigator and asked for his cellphone. He explained he did not have one. Mr Tate was indisposed and was not called at the hearing.
Mr Edward Rennell
[172] Mr Edward Rennell gave evidence. He stated he was the CEO of HRNZ at the time the prosecution was commenced in relation to Mr Negus. He knew “nothing” about the B sample getting sent off to Australia. He added that the decision, from 2011 when the RIU came into being, was that, “We set the Rules and then the RIU enforced them so we were not directly involved with the swabbing process and making decisions around the testing of samples.” Prior to 2011 when the Stipendiary Stewards and Racecourse Inspectors were employed by HRNZ, he was involved, but after 2011 he was not.
[173] The only awareness he had of this issue was when Mr Langbehn raised some concerns around some of the swabbing procedures. He facilitated a meeting the next day with him and Mr Lange (then counsel for the RIU) so that he could outline his concerns and bring them to Mr Lange’s attention. That was the extent of his involvement. He confirmed to Mr Langbehn that he had not authorised the sending of the B sample despite Mr Langbehn commenting to him that the Regulations at the time required his authority.
Respondent’s expert witnesses
Mr John Reeve
[174] Mr John Reeve was called by the Respondent to give expert evidence. He stated he was a regulatory toxicologist and that his expertise was in enzymes, and he believed that enzyme activity would be almost non-existent over the period of time between the testing of the samples in 2017 and the 2019 testing.
[175] He addressed the issue of whether the negative results in 2019 were due to freezing and degradation of the samples. He stated that he believed, “the one thing that everybody agrees on is that there is a pretty rapid drop off in the TC in the blood, certainly in those 2017 results. The two 2019 results being negative, that concerned me essentially because I believe that enzyme activity is almost non-existent once frozen. The chemical is not chemically unstable, so I would’ve thought that any deterioration over those two years would’ve been very small, to the point of being insignificant.”
[176] Mr Reeve later added, “My contention is that once the sample was frozen, I would not have expected any further deterioration to occur as a result of enzyme activity.” He acknowledged that this conclusion was not based on research but was just a general knowledge of biochemists and enzymes. He added he would have expected that there would be something found in 2019 if it had been there in the blood in the first place. He said he would expect to find TC in all of the tubes that are similar concentration.
[177] Mr Reeve agreed with Ms Thomas that there appeared to be quite a rapid drop off in the concentration of TC in the analyses, certainly between the screening sample and the confirmation samples, and then two years later with none being found at all. He did not believe that the deterioration would be sufficient to actually lead to negative samples two years later. If any deterioration was occurring, the relative stability indicated to him that it would not be particularly significant. He said he “would expect them to contain at least traces, if nothing else. In fact, I would expect them to contain a reasonable [sic] given it was quite easily detected in the others.”
[178] Given his conclusion that possible contamination was an explanation, he was asked to comment on the likelihood of the two tubes that tested negative – so were not contaminated – being the two that happened to have been stored for two years and tested two years later. Mr Reeve said he could only speculate as to why the two tubes two years later tested negative. He did not know whether the two tubes were put straight into -80. The nature of contamination was pretty random, so he did not know. It depended on exactly how contamination occurred, if it did.
[179] Mr Reeve stated he disagreed with Dr Wan’s opinion that there was not an inconsistency when different blood tubes tested two years later, tested negative after they had been stored for more than two years, with one of them also having undergone internal transport from New Zealand to Hong Kong. He agreed with Mr Howitt’s evidence that deterioration could occur during the thawing and freezing process.
[180] Mr Reeve commented that he would expect that the process of thawing and freezing, particularly the freezing, when the tubes had been put straight into -80, would happen “pretty quickly and, therefore, there would be only limited time for any further deterioration to occur. It depended on the method of thawing as to how much time would be available then.” Again, he would have thought that it would be probably insufficient to actually completely wipe out whatever was in there. He agreed with Mr Dow, that he could not state this conclusively, however.
[181] Mr Reeve elaborated upon his response stating “the inconsistencies” for him was that there was TC in a number of samples yet two of them came back two years later with absolutely nothing in it. He believed that given the stability of those samples at -80, TC should have been found. The only explanation he could think of was that some sort of contamination had occurred at some earlier stage in the chain of custody, probably fairly early on because otherwise, he could not understand how one could get TC found in some samples and yet two years later there is absolutely nothing there at all.
[182] When asked whether it was far more plausible that degradation of the sample explained the variance in the results between these tubes, Mr Reeve replied that he could not understand how the deterioration would be as big as it was. From his biochemical background, he could not understand how that could happen that rapidly. But he could not point to any research that supported that opinion.
[183] When asked whether that meant the Adjudicative Committee should not accept the earlier positive results that underwent the usual confirmatory analysis process because there was a different result for other samples from that same set, he responded, “My feeling is you got to be a bit worried about the viability of the other results.”
[184] When asked when a sample is frozen were there no factors that would affect deterioration, he said, “The drop off seemed to be extremely large and much higher that I would’ve expected.”
[185] With respect to his comments in his brief re quantitative analysis and the Australia and New Zealand laboratories, and to his indications of the ability to estimate the level at, for example, 57pg, he withdrew these.
[186] He agreed with Mr Dow that the discrepancy between the two versions of the NZRLS reports was a typo, as Mr Howitt had said. He said he had assumed as much. It made a comment about the quality control of the report, though.
Professor Ian Shaw
[187] The next expert witness for the Respondent was Professor Ian Shaw. He stated he is a Professor of Toxicology at the University of Canterbury. His research for the last 30 years has focused on steroid hormones.
[188] He addressed first a background on the Testosterone esters and how they might behave in the body; secondly, he looked specifically at TC and how that might behave in a horse’s body; thirdly, he looked at the analytical methodology with particular reference to horse hair; and then, finally, he looked at the results from this particular case.
[189] Professor Shaw said it was important to understand that TC is man-made, unlike Testosterone which is a natural hormone.
[190] With respect to degradation in the blood, he said it was temperature dependent and at -80 he would imagine there would be no degradation although some studies he had done with different compounds had shown that sometimes at -80 there was degradation but there were other reasons for that, and it was possible to get a little bit of loss. But if it was stored it at -80, he would imagine it would stay for a very long period of time.
[191] He said he would be “very surprised” if MISSANDEI had the recorded level of TC in it, and by 18 October [the second blood test] she had got nothing in her at all.
[192] With reference to TC, he stated it was not known how it behaves in horses but, it was likely to have, from humans, a very long elimination half-life. The fact of a completely clear second test was very surprising, particularly because of the high levels indicated in the first test.
[193] When asked about hair, he thought a lower concentration for a long period of time would give a better chance of finding it in a long hair but if there was a high concentration for a short period of time, it would be expected that a high concentration would be found in a small segment of the hair.
[194] Professor Shaw said if the samples had been stored at +4 degrees (Mr Salinas had said the samples were stored in the refrigerator before the positive was known), there would be some degradation. He could not assess how much as he did not know how well the esterase acts upon this particular compound. The level of variation between the individual tubes was not beyond the grounds of possibility. If they had been left sitting in the fridge for a while, then he would expect there to be some degree of degradation. If the samples were all stored at -80, he would expect to see very little degradation at all and there probably would be very little variability between those samples.
[195] He said he was unable to work out in which order the samples were analysed because apparently the laboratory only provided the print times and dates for the data and not the date and time it was accrued, which he agreed with Ms Thomas, if it was not done properly it “could” relate to possible contamination. He did not elaborate further upon this, however.
[196] Professor Shaw agreed with Mr Howitt’s estimation of seven weeks for the time it takes for TC to pass out of the horse’s system. It was based on lots of evidence and half-life. He agreed the further three weeks until the further blood sample was tested was significant. It would depend on the concentration to start off with. It could explain why the 18 October test was negative. TC could have been present but below the detection level, or not there at all. If there had been administration to the two horses and the administration to ARYA had happened a little earlier, he agreed this was a possible explanation for the presence of TC in ARYA (the trace) but below the detection level applied by the New Zealand Laboratory.
[197] In his brief, Professor Shaw said it was difficult to rationalise the findings with respect to blood and hair. Professor Shaw was referred under cross examination to the WADA code international standard for laboratories (2016) which was in force at the time the sample was taken which states at 6.2.4.3 “Alternative biological matrices”: “Any testing results obtained from hair, nails, oral fluids or other biological material shall not be used to counter adverse analytical findings from blood.” He agreed that given his opinion that blood is reliable, it was not surprising that the WADA had said blood trumps other substances. He said there were “tombs of scientific papers on blood levels. Very many fewer are on hair levels.”
[198] He agreed it was a helpful guide to apply, even though it was not binding on or did not relate to horses, stating “the pharmacological principle or the pharmacokinetic principle” applied.
[199] Professor Shaw said: “To put it in a nutshell, if a horse had been given TC, you’d find it in the blood. I would expect you to find it in the hair as well but there are no direct data to show that.”
[200] Professor Shaw disagreed with Dr Wan’s second statement and his opinion that it was not surprising that there were different results in the blood and the hair, saying it was “surprising on pharmacokinetic grounds” but “these are all opinions because there are no facts to base it on.”
[201] Professor Shaw agreed with Dr Wan’s comment that one off drug exposures, especially with the small dose, might not be detectable in hair and that was either because the substance did not make its way into the hair follicles in the first place or because it was such a small amount that it was not detectable using the analytical methods, but expressed the view it was very much less likely it would not find itself into the hair; it was very much more likely the methods were unable to detect it. He expressed the opinion that if it was a high enough dose to have an effect on the horse, he thought it would be detectable in both. He agreed with the proposition put by Mr Dow that “if someone decided they were going to use this amount of dose and do it once and they didn’t know, necessarily, whether it was going to work or not – so putting aside whether it’s effective but it did happen, this would explain the variance in the results.” However, he said, “You’re pushing me really hard here to extremes. That would have to be a very small dose, I think, not to detect it in hair.” He added that the blood level did not relate to a small dose.
[202] With respect to the negative blood sample on 18 October, he said be very surprised as he would imagine you would still measure to that time based on the half-life in humans.
[203] He agreed with Mr Dow that it was difficult to extrapolate from one species to another, but for a compound like TC, the esterases were ubiquitous in all animal species and the pharmacokinetic profile would be the same but the absolute values might be different. The maximum blood level – that might be different, the half-life might differ a little, but he would not expect to see an enormous difference.
[204] Professor Shaw disagreed with Mr Zahra’s evidence that it was not entirely unexpected that TC had not been detected in a hair sample taken from a horse whose plasma sample has previously tested positive for TC and that this was likely due to the TC being present in the hair in the concentration lower than the limit of detection of the method of analysis. This was because the level in the blood was quite high (he understood the levels to be between 50 and 300) and not low as Mr Zahra had said, although it was not possible to know that without seeing the studies. His expert opinion was, “I don’t know.” He added, “At that sort of concentration in the blood I would expect to see it exchanging to there but to answer your question, is it possible that blood level of TC might be present in hair at a concentration below that detectable, the answer’s yes but it would depend on the concentration in the blood and the dose. Dr Wan said this many times – they’re the variables. The concentration in the blood and the dose and the route of administration.”
[205] He acknowledged these variables were not known stating, “The only thing that we do know is that all the illicit preparations of TC and the medicinal preparations are intramuscularly administered.”
[206] Professor Shaw disagreed with Dr Wan that 20 to 300pg/l was a low level; he would describe it as high.
[207] He also disagreed with Mr Howitt’s comment that the variance between the hair and the blood results was not surprising, stating, “I would really expect to find the drug in the hair if it’s in the blood but, again, I’ve got to emphasise these are opinions with very little data unless Mr Howitt has done some experiments that haven’t been published.”
[208] Professor Shaw continued by stating, “I think the blood sample shows TC there. It doesn’t tell us how it got there but the hair sample would show that it got there through the animal and that’s why I find the hair sample result really important, notwithstanding the dispute about whether you’d find it in hair. That’s for real hair experts and Mark Dunnett is that person.”
[209] With respect to the two blood tests, given the level that was in the first sample at the start of the testing, if there was reduction, he thought that should have been picked up within the 20 days given the very long elimination half-life, but he could not know that. He would expect it to be there.
Recall
[210] Professor Shaw was recalled to give further evidence. He read from his report dated 22 February 2024 which commented on Dr Wan’s statements of 24 July 2018 and 24 October 2023.
[211] Professor Shaw drew the following conclusions in his report:
• The presence of TC in the blood sample is accepted (how it got there is not known). The updated NZRLS Confirmation Report shows that TC carryover does not explain TC’s presence in MISSANDEI’s blood sample.
• Since TC was present in the horse’s blood, one would expect residues in hair (based on studies on other steroid esters) and that a negative hair result points to contamination of the TC positive blood sample rather than administration of TC to the horse.
• Dr Wan disputes the interpretation of the negative hair residue results, opining that if TC residues were laid down in the hair, they might have been degraded during the long storage period of the hair prior to analysis. He bases this on published works that on close scrutiny do not entirely support his opinion because they either studied labile compounds, administered an ester orally or listed degradation risk factors more relevant to human than animal hair.
• Dr Wan concludes his dispute of the relevance of the negative hair result by referring to the WADA standard that gives precedence to blood findings over findings for other biological samples (eg, hair). The WADA standard does not appear to be based on any scientific evidence.
• In this case, whether a situation would be reasonably expected to have occurred is the key. In this context:
• The blood sample definitively and indisputably contained TC (nobody disputes this).
• The hair sample did not contain TC (nobody disputes this).
• That TC would be present in hair if it was present in blood is a reasonable assumption based on published studies for other steroid esters (Dr Wan disputes this, but with no strong evidence).
• There is no specific evidence to show that TC residues in hair would degrade over time (Dr Wan suggests that degradation is likely, but quotes papers on a very different drug and situation in support).
• The disparity of TC results between hair and blood at best introduces a significant level of uncertainty about the meaning of the findings, and at worst suggests that the blood sample was contaminated with TC rather than the horse having been administered TC.
• Finally, there is a great deal of good science on hair residues and mechanisms of incorporation in the scientific literature. We understand the mechanisms of incorporation. The fact that no specific studies have been carried out in horses on TC, although ideal, does not preclude applying our understanding of the behaviours of other (similar) compounds in other mammals successfully to the equine context. This is a robust and common scientific practice. From the point of view of molecules, the concept of SARs (as discussed above) is an accepted means of predicting the behaviour of related molecules in biological systems. Similarly, extrapolating between species that have comparable metabolic systems is also acceptable. In the context of the steroids, all mammals have basically the same metabolic processes for steroid metabolism and so the pharmacokinetics between mammalian species is comparable.
• For these reasons, it is inappropriate (indeed naïve) to conclude that since TC has not been studied in horses, that we cannot reliably speculate on its likely behaviour in that species. Since we know much about the pharmacokinetics of related compounds in horses and TC has been studied in other mammals, we can use this as evidence to reliably predict its behaviour in the horse. The science of regulatory toxicity, in particular drug safety assessment, is based on extrapolation from species to species to predict, for example, human toxicity. This approach is accepted by scientists and regulators alike worldwide. We should not dismiss the approach in this case.
[212] Professor Shaw said Testosterone was not checked for in the hair, but he was surprised because if there was esterase activity, he would expect release of Testosterone, which would be found.
[213] He agreed with Mr Dow that the hair result did not “tell us that the blood did not contain TC” and also that “it tells us really nothing about the blood sample at all.” He said the fact that TC was found in the blood and not in the hair “casts doubt upon that [that the horse had TC in its system]. He believed the fact that there had been contamination of the blood sample was a hypothesis that was “based on a lot of scientific evidence.”
[214] He agreed that the negative result did not mean that the hair did not contain TC, because it could have been below the limit of determination of the analytical method or for some other reason it was not detected. He added, “That could be the case for any analysis you did anywhere at any time so that means all analyses could be wrong.”
[215] Professor Shaw believed it was possible the blood sample had degraded but it was very unlikely. He disagreed with Dr Wan’s opinion that it was plausible. It suggested there was an anomaly in the blood results that required further consideration.
[216] He agreed with Mr Dow that TC was in the sample when it was screened and that it must have got into the sample before then. He also said to was possible to put aside any suggestion there had been contamination at the New Zealand or Australian laboratories. There was no evidence of contamination but there was always a risk.
[217] Professor Shaw further agreed with Mr Dow that it appeared that the tubes somehow were contaminated before they arrived in the New Zealand laboratory but only six of the eight were contaminated, and the two that were not contaminated happened to be the two that were retested two years later rather than used, for example, as a B sample or confirmatory analysis.
[218] He agreed with Dr Wan that finding TC in hair following administration would depend on a number of things such as dose, route, administration frequency, sensitivity of analytical techniques – all of those variables — but was not sure that would determine whether it was found or not; it would determine the concentration that would be found find in the hair. He continued by stating, “As Dr Dunnett said, if you had a very short – I think Dr Dunnett mentioned an intravenous administration where you’ve got a huge peak and you’d get a peak in hair but if the hair is that long, the peak’s going to be in a tiny bit and then you might miss it. I don’t think it’s about whether it’s laid down or not; it’s whether you find it or not and whether the concentration is sufficient to finding it.”
[219] Professor Shaw said that the negative result in the hair suggested that the compound was not administered to the animal. He put great value on that hair residue as a predictor of the presence of the compound in the animal’s body; not just finding it in the blood.
[220] The hypothesis that the TC had degraded and was not detectable, he agreed, was tenable but he said, “when you look at the information and data and what we know about these compounds, it’s very unlikely.”
[221] Professor Shaw commented with esterase activity, he would expect the release of Testosterone, which was not found in the screening. He accepted the Testosterone had not been measured.
Dr Mark Dunnett
[222] Dr Mark Dunnett, an equine toxicologist, gave evidence.
[223] In his written brief he stated that to the best of his knowledge there were no reports of the detection TC in equine hair resulting from controlled administration studies nor as a consequence of alleged anti-doping rules violations in the scientific or technical literature. Furthermore, there appeared to be no pharmacokinetic data available for TC in horses.
[224] Consequently, to inform his opinion on the absence of TC in the mane hair samples collected from MISSANDEI he drew upon the following comparative data:
1) The detection of prohibited substances in mammalian hair;
2) The detection of AAS [atomic absorption spectrometry] in mammalian hair;
3) The detection of TC in hair in any circumstance;
4) The detection in hair of Testosterone esters chemically structurally related to TC;
5) The pharmacokinetics of Testosterone esters chemically structurally related to TC.
[225] Dr Dunnett concluded that it was reasonable to apply comparative data in the horse, and other species, for Testosterone esters that are structurally similar to TC, Testosterone enanthate, Isocaproate, Phenylpropionate, Valerate and Hexahydrobenzoate, and/or that exhibit equivalent pharmacokinetic behaviour as models to predict the deposition and detectability of TC in equine hair.
[226] In his opinion, given the similarities between TC and certain other Testosterone esters, as described, it was “highly probable” that TC would be incorporated into hair and thus be detectable by instrumental mass spectrometric techniques.
[227] Dr Dunnett identified methodological and procedural inconsistencies, deviations from best practice, and conflicting analytical findings within the blood analysis data.
[228] Comparison of the estimated concentration data for the MISSANDEI analytical sample between the screening analysis and confirmatory analysis indicated a substantial degradation from approximately 210-218 pg/mL to 27-36 pg/mL for the A sample, and subsequently 15-26 pg/mL for the B sample. Although Testosterone esters were known to be subject to esterase mediated hydrolysis in blood and plasma samples, such extensive degradation evident in the case did not seem credible if appropriate storage temperatures were maintained and sodium fluoride added to the samples. Where appropriate measures were taken, Testosterone esters were relatively stable, as indicated for Testosterone enanthate in the study by Yu et al (2010). Similar inhibition of ester hydrolysis by temperature control was reported in Grey et al (2010) where it was reported that TC degraded by only 17% over 24 hours at ambient room temperature and by only 9% over 24 hours at 40C, but that degradation increased to approximately 40% over three days at both storage temperatures. The use of sodium fluoride esterase inhibitor was not stated.
[229] Grey et al (2010) reported that from the analysis undertaken in this study it was evident that AAS esters can remain intact in frozen equine plasma for at least seven years. This was further substantiated by reports in the public domain that re-analysis of frozen retained samples from the Olympic games held in 2008 and 2012 had led to the successful detection of previously undetectable AAS, and subsequently successful regulatory procedures for anti-doping rules violations.
[230] In the screening analysis undertaken at NZRLS on 29 September 2017 a positive control sample fortified at a concentration of 200 pg/mL was run in parallel with the screening blood sample from MISSANDEI. As part of the confirmatory analysis undertaken at the NZRLS laboratory on 2 October 2017 a positive control sample was run in parallel with the confirmatory blood sample from MISSANDEI. The positive control was fortified to a concentration of 500 pg/mL; approximately 15–20x greater than the concentration estimated to be present in the confirmatory sample. Dr Dunnett said such a mismatch would lead to a difference in matrix effects between control and confirmatory samples. This may therefore result in unpredictable differences in suppression/enhancement for the monitored molecular ions between positive control and confirmatory samples.
[231] Dr Dunnett said it was difficult to rationalise why such a high concentration, 2.5x greater than that applied in the screening analysis was used for confirmation. A much lower concentration of, for example, 50 pg/mL would have been more appropriate.
[232] The AORC Guidelines for the Minimum Criteria for Identification by Chromatography and Mass Spectrometry (AORC 2016) provide a robust framework for the confirmatory analysis for the formal identification of a substance that presents an adverse analytical finding during screening analysis. These guidelines set out minimum criteria for analytical laboratories to ensure that the confirmation of the identity of a substance is fit for purpose and legally defensible. Although such a discrepancy is not absolutely excluded within the AORC guidelines, it is a significant deviation from accepted best practice.
[233] With respect to the spike, he said it was best practice, and in his experience common practice, to match as closely as possible the estimated concentration in the sample being tested with the concentration of the reference sample. There was a good reason for doing that. In both cases there was the plasma sample from the horse and the blank plasma. He said, “In the horse sample you have a certain amount of prohibited substance you suspect is there because this is in the confirmatory analysis so you’re trying to come up with a definitive answer. By matching your comparison – your concentrations – you minimise the difference in background substances between those two samples.” He later said this issue had nothing to do with contamination. It was a comment on the procedure adopted by the laboratory. And he did not dispute the result of the confirmatory analysis.
[234] With respect to Dr Wan’s comment that a positive result from one matrix being bloods and a negative result from another was “not an abnormal situation and not unusual”, Dr Dunnett said he could “not really comment because, clearly, as he’s on a day to-day basis involved in multiple regulatory investigations, so he would have a better knowledge of that than I would.”
[235] Dr Dunnett disagreed with the proposition that blood was more reliable than hair as a biological matrix for detecting drugs. He also disagreed with Professor Shaw’s evidence that blood is the most reliable biological matrix for testing of TC, stating hair and blood were equally viable.
[236] He agreed that the levels from the New Zealand laboratory confirmatory analysis and the Australian laboratory were largely consistent.
[237] Evidence regarding degradation of TC, validation of the freeze/thaw process, and detection of TC from frozen samples was given by Dr Dunnett. He stated two years would not necessarily lead to degradation to the point there was nothing left. He believed it would not degrade over two years.
[238] Dr Dunnett also stated that he would not have expected a large amount of degradation within the two or three-day time period at the New Zealand laboratory. He commented the sample should not have changed that much in such a short period of time, which raised freeze, thaw, storage temperature, stability issues. The two tubes tested two years later should have at least produced a value consistent with the 50pg/mL. Nothing was found at all, so there was something wrong in the procedure that had caused such different results. He was not disputing that TC was detected at all. The only explanation he could see for this was contamination.
[239] He referred to the Grey (2013) study stating, “If you put TC into a fridge instead of leaving it out on a laboratory bench, for example, the data from Grey shows that you lose 9% only over 24 hours and about 44% over three days in the fridge. Yes, TC will degrade but it doesn’t degrade very quickly.”
[240] Freezing at -80 was the accepted and a commonly applied storage temperature in regulatory laboratories. When the sample is thawed the temperature had to be increased, so any chemical processes that might occur in that sample would be increased. A single freeze/thaw was accepted largely to have a minimal effect; it was when one repeatedly analysed samples — freeze/thaw, freeze/thaw, freeze/thaw — that some drugs start to degrade.
[241] Also with reference to Grey, he said he accepted the fact that following administration of a Testosterone ester, the Testosterone ester was not always detected in hair samples taken at different time points. However, it was more likely to be found in those time points subsequent to administration which were closest to the point of administration. The further away in time, the less likely it was to find it.
[242] Dr Dunnett agreed that Grey had said in terms of the results obtained that concentrations of Testosterone esters and equine mane hair following a single 500mg IM administration of Duratests were low and challenging to detect.
[243] He believed the length of hair tested in the Hong Kong laboratory was more than sufficient to cover not only the period after the blood sample was collected but an extensive period before the blood sample was taken. It was a perfect sample in order to detect the drugs.
[244] When questioned by Mr Langbehn, Dr Dunnett stated, “The analytical process begins at the point where the sample is taken because the sample is integral to the testing process and that contamination could occur from the point of sampling through to the transport of the sample to the laboratory.”
[245] He agreed with Mr Dow that there were effectively three possibilities in this case:
(1) the horse did have TC but that did not hydrolyse into the hair follicle;
(2) it did hydrolyse but it was at such a low concentration at the point that it was tested that it was not detected;
(3) TC was never in the horse’s system.
[246] He agreed the first two possibilities would be consistent with the adverse analytical finding in blood. The third would not be and would require some further explanation as to how TC got into the blood. Contamination was a possibility, but he was “not being definitive in this.”
[247] Dr Dunnett said he did not want to stray into the realms of speculation, commenting, “What I can say that causes me some concern is that you have eight samples taken from the same horse. Let me correct that. You have one sample taken from a horse on the 28th of September that comprises eight tubes of blood but it’s one sample. Two of those tubes had no detectable levels of TC in them. I don’t accept that it’s degraded to the point where it’s not there; we’ve been through the degradation evidence. There has to be, therefore, another explanation for why 25% of those samples were negative for TC. I’m not suggesting that the laboratory have done anything incorrect in that regard and it would be very hard to envisage how you could contaminate two out of at least six tubes that were sealed.”
[248] When Mr Dow said it would not be just very hard, it would be incredibly unlikely, Dr Dunnett agreed, stating, “Therefore, if you want to follow a contamination argument, you have to look at the transport of the sample to the laboratory and the process of sampling. I can’t comment on how that was done for this particular horse because I wasn’t there; I didn’t see what happened, but they are two key points where contamination can occur, as it can occur in a laboratory and that’s why they have such rigorous protocols to try and prevent that from happening. You have rigorous protocols also in place for sampling and transportation so that you’re minimising that risk. It’s all about minimising risk and maximising the validity of your sample and your testing process.”
[249] Dr Dunnett agreed with Mr Dow that his view was that it more likely than not that six out of the eight tubes were contaminated, the other two were not. He agreed that the two tubes that were the B sample tested in Australia eight days later could not have been contaminated in the laboratory. The fact that these had TC in them, he believed pointed to contamination prior to the sample’s arrival in the New Zealand laboratory.
[250] With respect to the contamination issue, Dr Dunnett said he had recently observed the taking of raceday blood samples at observations at Motukarara. He had seen the veterinarian not changing her gloves, not sterilising the horse or cleaning the horse’s skin in any way, her wiping of the glove across the horse, and the tubes being thrown loosely into an open bag which was out of her sight when she continued to test further horses.
[251] Dr Dunnett confirmed in response to a question from the Adjudicative Committee that contamination had occurred, in his opinion, only before the samples arrived at the New Zealand laboratory and not at any point thereafter.
[252] Dr Dunnett expressed surprise there was no validation for the freeze/thaw process as it was a fundamental requirement for the validation of the methodology. He emphasised there would be zero chemical reaction with drugs stored at -80 as it was only possible in a liquid. Stability in storage, stability in freeze/thaw, he said, were critical criteria, commenting, “As part of your method of validation, you have to examine those criteria, you need to understand what happens and you have to put measures in place to mitigate it and that forms part of your validation and subsequent accreditation.”
[253] In reference to the fact that there was no reported Testosterone detected during the screening, he said it meant to him that it was more likely than not, TC was not administered to the horse. He would expect to see an elevated Testosterone level in the blood because the samples were recorded as being from a female. He said, “The whole purpose of administering Testosterone as an ester form, whether that’s cypionate or any other ester form by injection into the muscle, is to release Testosterone into the circulation so into the blood and to maintain that elevated concentration over a prolonged period of time.” It was the Testosterone itself that had the physiological effect, not the TC, so TC was administered, and Testosterone was released from the site of injection into the circulation, and this elevated the Testosterone concentrations in the blood and that was prolonged over time.
[254] Dr Dunnett stated later that there being no record of an adverse level of Testosterone in the blood sample from MISSANDEI was not consistent with Testosterone as an ester being administered exogenously, in fact, it went to the argument that it was not administered exogenously in the first place.
[255] Dr Dunnett’s conclusion was that the methodological and procedural inconsistencies, deviations from best practice, and conflicting analytical findings within the blood analysis data, taken together with the expert opinion of Mr John Reeves and matters set out in his report, indicated that it was “more likely than not that the detection of TC in a single blood sample only had arisen from contamination within the analytical process.” We emphasise, as previously noted, when questioned, he had said it was more likely than not that six out of the eight tubes were contaminated, the other two were not.
[256] Mr Langbehn referred Dr Dunnett to the WADA code and the significance of hair testing. He stated, “Hair testing is increasingly used in out of competition testing under IFHA rules and the rules of national regulators, specifically to target the use of prohibited at all times substances. It’s used in France, Ireland, the UK, here, Australia, the States. That testing strategy is established and robust.”
[257] The analytical data presented in the reports from the HKJC and RASL laboratories, which indicated TC was not detected in hair collected from MISSANDEI, when viewed in conjunction with the comparative hair data presented in his report and that of Professor Shaw, he believed indicated on balance of probability that TC was not present in the hair samples from MISSANDEI.
Discussion
The taking of sample 129275
[258] Sample 129275 was collected by Mrs Williams and Dr Corser on 28 September 2017. The tubes had been numbered the previous day and that date (the 27th) had been entered on the sample identity record and the swab cards and had not been updated to reflect the fact Mr Negus was not available until the 28th, as it was “all prepacked”. We accept Mrs Williams’ evidence that the bag containing the tubes was in a secure place prior to its being opened on 28 September.
[259] Dr Corser obtained eight x 8ml vials of blood, all numbered with 129275, which Mrs Williams placed in the security bag in each of its four pockets and sealed in the presence of Mrs Negus. The same process was completed to obtain a sample from ARYA (sample 129274).
[260] Mrs Williams had stated in her brief of evidence that she had placed the tubes in a 2222 configuration in the satchel (also referred to by witnesses as a security pouch or security bag), whereas it was 1133. On becoming aware some time earlier of her error in her written statement, which had its foundation in a change of practice at about the time sample 129275 was taken in order to synchronise out of competition, raceday and trials swabbing, this was corrected in her oral evidence. Mr Dow has acknowledged in his submissions that the failure to draw this to the Respondent’s attention was an oversight on his part, as the configuration error had become evident to the Informant sometime prior to the hearing. We accept Mrs Williams’ latter oral evidence as being a correct description of the manner in which the tubes were placed in the satchel.
[261] Mrs Williams stated she had received training when she first started testing and that her swabbing practices had not altered since that time. Dr Corser confirmed that Mrs Williams followed her usual practice. Mrs Negus said that Mrs Williams had conducted the process in her usual manner, which was quite quick.
[262] The mistake by Mrs Williams as to the sequence in which the tubes were placed in the satchel, while unfortunate and one that should have been acknowledged earlier by the Informant, did not prejudice the Respondent and does not raise the likelihood of contamination of the sample. The prior labelling of the tubes and dating of the swab cards is understandable in the circumstances and the satchel containing the tubes was in a secure place prior to its being opened on 28 September. The date on the cards should have been amended and updated but again this does not suggest contamination.
[263] The tubes were sealed and placed in the satchel, which was also sealed.
[264] Dr Corser’s evidence is that she followed her usual practice with respect to taking the samples from MISSANDEI and ARYA. The same manufacturing batch of tubes was used for the taking of each tube of the sample. The needles were sealed in a container provided by Mrs Williams and were opened immediately prior to the taking of the sample. Dr Corser saw no evidence the tubes had been tampered with and stated that as they were vacutainer tubes this would have been obvious. We are satisfied that any tampering with the tubes would have prevented the vacutainers from functioning correctly. Mrs Williams described how the buffer did not come into contact with the blood.
[265] Mrs Williams sealed the security pouch across her body rather than on a flat surface. The only flat surface available immediately was the ground so she elected to do it against her body which she believed had no bearing on the sample itself. Mrs Williams explained the instructions recommending a flat surface related to bottles rather than test tubes and the suggestion disregarded the practical realities of out of competition testing. We fail to see how this practice adopted by Mrs Williams could have resulted in contamination.
[266] The two security pouches were sent by Mrs Williams in a courier bag to NZRLS in Auckland two hours after the tubes had been sealed in the security pouch. There is no evidence to the effect that the security pouch left Mrs Williams’ possession during this time.
[267] Mrs Negus witnessed Dr Corser taking the sample and was satisfied that it was done properly. She did not see Mrs Williams seal the sample. Mrs Negus’s evidence is that the process was not adequately explained to her and that she was not aware that when she signed the form, she was confirming that everything was in order and the effect her declaration would have on the owner’s or the trainer’s ability to challenge the collection as being valid. She believed that she was only confirming that the numbers on the tubes and swab cards matched. While this misapprehension is unfortunate, it does not lead the Committee to any conclusion that something was amiss with the swabbing practice on this occasion. Mrs Negus confirmed there was nothing about the collecting, the packaging and sealing that concerned her on the day.
[268] Dr Dunnett’s observations some years later (at Motukarara in 2024) of the taking of raceday blood samples and his witnessing an unidentified veterinarian not changing her gloves, her wiping of the glove across the horse, and the tubes being in an open bag and out of sight of the veterinarian, have little relevance to non-raceday testing and, in particular, to Dr Corser’s actions on 28 September 2017, and we place no weight on this.
[269] There is no evidence that Dr Corser or Mrs Williams deliberately contaminated the samples, and this has not been alleged by the Respondent. The Respondent has raised the spectre of a third party being able to tamper with the tubes prior to their being used on the day, viz 28 September 2017, but given the nature of the tubes, any tampering with the tubes would have prevented the vacutainers from functioning correctly and the evidence is to the contrary.
[270] The fact only six of the eight tubes would have been tampered with also suggests this is highly unlikely. Contamination could not have occurred after the taking of the sample as the tubes were sealed in a security pouch (satchel) which was intact when it arrived at the laboratory.
[271] We do not accept the Respondent’s submission that the sample’s integrity was compromised at some point. There is no break in the chain of custody such as to lead this Committee to conclude that there is an issue with the integrity of sample 129275.
Analysis of sample 129275
[272] The courier bag was delivered by courier to NZRLS on 29 September 2017, the day after dispatch. Laboratory analyst Mr Salinas confirmed that the samples were received with seals intact. This was corroborated by the evidence of Mr Howitt, who confirmed that the seals were intact, and the security pouch had not been breached.
[273] That the tubes contained blood from MISSANDEI was not challenged by the Respondent and the Informant’s written submissions state the blood was DNA tested and confirmed to have come from her. We understand this was not at issue in this case.
[274] The process adopted in testing sample 129275 was described in evidence by Mr Howitt and Mr Salinas. Mr Salinas was alerted to the presence of TC by the initial screening of a tube from the sample and this was confirmed by further analysis of the sample with the blood being taken from a second tube. Both Mr Howitt and Mr Salinas stated there were procedures in place to avoid any chance of contamination, with Mr Salinas stating it was “impossible”.
[275] One challenge to the process adopted by NZRLS was the use of 500pcg for the spike sample. Mr Reeve claimed this was a departure from the AORC Guidelines and best practice. Mr Howitt disagreed with this. Dr Dunnett acknowledged that the guidelines said matching the sample with the reference was not necessary and he accepted this, however he argued that best practice was not to do that. Dr Dunnett agreed that the use of 500pg in the spiked sample had nothing to do with contamination, and he did not state that this departure would affect the validity of the confirmatory result as he was “not disputing the result of the confirmatory analysis.”
[276] Mr Howitt stated there was degradation of about 40 to 44% between screening on 29 September and the confirmation testing on 2 October (the third tube), which was 72 hours later, notwithstanding the product was in a freezer. He assumed the degradations all occurred at -80, whereas the thawing process could probably account for a large degree of it.
[277] Dr Dunnett expressed surprise that the freeze/thaw method at NZRLS was not validated. He said, “A single freeze/thaw, it’s accepted largely it has a minimal effect; it’s when you repeatedly analyse samples so you freeze/thaw, freeze/thaw, freeze/thaw that you start to degrade some drugs. All drugs don’t behave the same way; some drugs are more stable than others. Stability in storage, stability in freeze/thaw … are critical criteria. As part of your method of validation, you have to examine those criteria, you need to understand what happens and you have to put measures in place to mitigate it and that forms part of your validation and subsequent accreditation.”
[278] The validation issue arose in the context of Mr Howitt being asked how he validated the freezing and thawing process that he used on this occasion and his being asked the direct question: “Is your method of freezing and thawing validated and has it been approved by IANZ?” He responded, “No.” NZRLS is an accredited laboratory, and he had responded in the affirmative to an earlier question as to whether as part of the validation process or method development process, had the laboratory ever looked at freezing and thawing. He had also stated that the standard operating procedures within the laboratory had been validated and agreed to by IANZ.
[279] The laboratory as part of its every day processes receives, freezes, thaws, and tests samples. We view Mr Howitt’s response, only a few moments later, as relating to this process on the day with respect to TC; ie that there is no separate validation for freezing/thawing TC. This is understandable; this was the first ever positive in the laboratory to TC. To draw from Mr Howitt’s reply, which was not followed by any related questioning, a conclusion to the effect that the freezing/thawing process in general is not validated when it is an accredited laboratory with validated standard operating procedures which had been agreed to by IANZ, is one that we do not draw, particularly in light of his previous related response and his later statement concerning the laboratory conducting validation for TC some two to three weeks prior to 29 September 2017. He said, “Our methods are accredited under two scopes. There’s a fixed scope and a flexible scope. This method [the MM70 method] was accredited under our flexible scope for a couple of years or a year and a half prior to the IANZ assessment. The IANZ assessment is when our methods are then formally assessed by an external technical expert. We were getting together a validation package for IANZ. We’ve done lots of validation work for years, but this particular validation work was for TC and lots of other drugs as well.” The significance of this issue is also to be viewed in the light of Dr Dunnett’s statement, as noted above, that he did not dispute the result of the confirmatory analysis.
[280] Tubes 5 and 6 (the B-sample) remained sealed until received by RASL on 6 October 2017. The samples were recorded as received “in good condition with all seals intact”. Mr Batty, the Laboratory Director, confirmed the certificates issued by the laboratory were correct. He confirmed the laboratory was an IFHA reference laboratory, one of five in the world. When questioned by Mr Langbehn, Mr Batty stated that RASL used “several mobile phases to ensure the system is clear.”
[281] We observe that if the confirmatory positive result was the result of inadvertent laboratory contamination, that same error would need to have happened to all three tubes tested at the NZRLS laboratory (tube 4 excepted, as noted below, although that too was positive), as well as the two tubes sent to RASL in Melbourne, but did not compromise the blank samples which were there to detect inadvertent contamination.
[282] Dr Wan made reference to this in his oral evidence when he stated, “I understand there were consistent findings from different blood tubes of the same sample by different laboratories on different occasions that means each and every one of those six blood tubes or all these blood tubes have to be contaminated, which is quite unlikely from a blood sampling procedure.”
[283] In addition, we note that the Respondent’s witnesses in general have not stated that the testing by the NZRLS laboratory was likely to have resulted in contamination or an unreliable result, the testing of tube 4 excepted, which Mr Howitt has explained was an experiment to see what affect temperature would have on the sample degrading, the result of which has not been relied on by the Informant.
Alleged fluctuations in the levels of TC
[284] We now consider the Respondent’s closing submission that sample 129275 had “inexplicable large fluctuations of TC: that being between the screening result, the confirmation level, the stability test tube (4 October 2017) all analysed by NZRLS; the B sample analysis conducted by RASL; the single tube analysis conducted by the HKJC in October 2019; and the single tube re-analysis conducted by NZRLS in December 2019.” The two analyses in 2019 we deal with later in this discussion.
[285] First, the estimations of the level of TC.
[286] The evidence of Mr Howitt was that the estimated levels were just that. He had provided a rough estimate in order of magnitude of 100 to 300 pg/ml to the Respondent. He agreed he had provided a rough estimate of 200 pg/ml to Dr Wan, as Dr Wan asked him to do so when the Hong Kong laboratory was about to test the hair sample. Mr Howitt said the test is purely qualitative and given Dr Wan’s experience, he would know that it was not an accurate number. He emphasised, “Using the results of this testing to determine measurement, that’s not the purpose of the test….”
[287] The Respondent has expressed concern that a similar estimate was never given to him. Mr Howitt’s estimate is “rough”, that was the word he used, and this estimate was known to both Professor Shaw and Dr Dunnett when they gave their evidence. It is a broad ball park figure. It is not fundamental to the proof of the charge. We do not believe that the Respondent has been misled or prejudiced in this regard.
[288] There is clearly a drop between the screening result and the confirmation level. This is what concerned Mr Howitt. The stability test tube (tube 4), also analysed by NZRLS (4 October 2017), we have already discussed. With respect to the B sample analysis conducted by RASL, Dr Batty states the levels from the New Zealand confirmatory analysis and the levels from the Australian confirmatory analysis are “pretty much the same”. The test methods were designed to confirm whether or not the drug was present; trying to compare levels was not appropriate or justified.
[289] This issue of qualitative versus quantitative analysis is a further matter before the Adjudicative Committee. Dr Batty said the qualitative results were never intended to be used in such a way to show that TC concentrations were either going up or down in the set levels. All they showed was that TC was present. Mr Reeve in his original statement applied quantitative method to qualitative analysis. He resiled from his evidence on this issue at the hearing and accepted that the data could not be interpreted in the way that he thought it could, and, in this regard, his written statement was ill-founded and could no longer be relied on.
[290] Professor Shaw stated that while he did not have access to the validation data and, despite the evidence from Mr Howitt and from Mr Batty, he believed it was possible to use qualitative data to give a rough idea of the amount of a substance present or the concentration of a substance present, and the RASL result showed an increase in concentration. When questioned as to what he meant by “rough”, he replied, “I’m a user of analytical methodology, not an analytical chemist and I wouldn’t expect that degree of variability between samples but they’re probably saying we do.”
[291] Dr Dunnett agreed with Mr Dow that the levels from the New Zealand laboratory confirmatory analysis and the Australian laboratory were largely consistent.
[292] In these circumstances, we prefer the evidence of Mr Howitt and Mr Batty in this regard, and we note Mr Reeve’s change of position.
Testosterone and the screening data
[293] The Respondent has raised issues with respect to disclosure. Mr Irving has stated that any requests from the Respondent were immediately passed on to NZRLS and Mr Howitt has stated that he believes the laboratory had responded appropriately by providing all the data that was required to support the certificate of analysis in accord with the IFHA guidelines.
[294] The principal issue appears to be the absence of full screening data. This issue appears to be pertinent to the presence or absence of Testosterone. There was never any indication from NZRLS that an elevated level of Testosterone had been detected in the screening analysis or any data to this effect. Testosterone is a prohibited substance at or below a specified threshold in cl 4.9 of the Prohibited Substances and Practices Regulations.
[295] The significance of there being no reported elevated levels of Testosterone was raised by Dr Dunnett who said he would have expected such to have accompanied a TC positive because of the nature and function of TC. Professor Shaw said with esterase activity, he would expect the release of Testosterone, which was not found in the screening. This was not in his written brief.
[296] Dr Dunnett said the fact that there was no Testosterone detected during the screening which was reported said to him that it was “more likely than not, TC was not administered to the horse.” This was not raised in Dr Dunnett’s written brief and was not put to the Informant’s witnesses. Mr Dow states that this issue should have been put to the Informant’s witnesses in cross examination. This is the usual practice. Ms Thomas is correct when she says the opportunity was given to Mr Dow to recall his witnesses, but this was late on the final day when there may have issues as to their availability. The Adjudicative Committee suggested the possibility of an AVL. Mr Dow was reluctant to seek any further adjournment for this purpose, which was understandable in the circumstances of this case.
[297] Mr Howitt was clear in his evidence that NZRLS would have reported a positive result to Testosterone if the level was above the threshold, but the proposition that a horse exposed to TC would also be likely to also return a positive result for Testosterone, and the significance of the absence of a positive report for Testosterone, was never raised directly with him. Nor have we received detailed evidence on this issue, just the opinion of Dr Dunnett, as noted above, that there should have been elevated levels of Testosterone, and Professor Shaw saying he would expect the release of Testosterone. Neither witness has elaborated upon the significance of this, nor has the Adjudicative Committee been referred to any research or studies.
[298] We are asked to conclude that because the function of TC is to raise Testosterone levels, the fact Testosterone was not reported supports the Respondent’s submission that TC was never present in the horse. Testosterone may have been present, but the evidence before us is that this was not at a reportable level. We can take this issue no further and Dr Dunnett’s opinion “it was more likely than not” that TC was not administered to MISSANDEI is not such that it leads us to conclude that the positive result from the blood sample taken from MISSANDEI is unreliable or is contaminated.
The two further tubes
[299] With respect to blood, the Respondent has questioned why it took so long for him to be told that two tubes of sample 129275 remained in the NZRLS laboratory. Mr Irving has said he was unaware there were still two tubes and accordingly he had not deliberately misled Mr Negus when he had said there was no more blood. Mr Howitt has explained that from his perspective, once the tubes had been taken out of the security pouch, the forensic integrity was diminished, and they were not capable of being tested. They were no longer suitable for analysis. The issue had arisen when Mr Casey made a request for the B sample to be analysed, but this was too late, the B sample had already been sent and tested. He added, “There was no C sample.” We find the fact that the pouch’s security had been breached was the reason the two further tubes were not identified. Mr Howitt’s explanation is reasonable in these circumstances.
The error in the original report
[300] The Respondent submits that the report of the analysis of sample 129275 by NZRLS was incorrect. Mr Langbehn, when questioning Mr Howitt, referred to the fact that with respect to mass spectrometry data, a graph in the first report at page 16 stated “criteria not met”. Mr Langbehn said, “This meant it was a false report.” Mr Howitt responded that the graphs were taken from spreadsheets which had to be reformatted to get them on to the page. The result “criteria not met” was as a result of a function on the spreadsheet and when it was formatted for inclusion into the report, a reference was lost in one cell which meant it incorrectly had an output of “criteria not met.” A day or so after the report was sent, this was corrected, and Version 2 came out which had criteria met.
[301] This error has not misled the Respondent. It was quickly corrected. Mr Reeve in his evidence said he had assumed it was a typo, and we see no prejudice to the Respondent as a result of the error with the graph on page 16 of the report.
[302] Dr Dunnett, as previously noted, said he did not dispute the result of the confirmatory analysis. In addition, we find there is no evidential foundation for an allegation of contamination at the RASL laboratory.
[303] Again, having regard to the evidence relating to the testing of the tubes at NZRLS and the RASL laboratories, we do not accept the Respondent’s submission that the reliability or integrity of sample 129275 is open to such question that we cannot draw the inference that the fact that MISSANDEI had TC detected in the confirmatory analysis was a consequence of TC being in her blood at the time the sample was taken.
[304] The validity of the positive result is further challenged by the Respondent on the basis of the subsequent test results of both blood and hair from MISSANDEI.
[305] We turn now to consider the inconsistent analytical results and whether it is appropriate that this Committee draw the inference from the negative results that MISSANDEI did not have TC in her system. First the subsequent blood samples.
Subsequent testing of blood samples
[306] Two tubes from sample 129275 were tested on 3 October and 11 December 2019, respectively. These were negative.
[307] A further blood sample was taken from MISSANDEI on 18 October 2017. This test too was negative.
[308] The significance of the negative results was the subject of evidence from experts in their respective fields: Dr Wan and Mr Howitt, who gave evidence for the Informant; Mr Reeve, Professor Shaw, and Dr Dunnett, for the Respondent.
[309] Their evidence has been recounted earlier in this judgment and we highlight only what we believe are the most salient points.
[310] The key issue with the blood is the time lapse between the testing of the 2 October confirmatory sample and the subsequent samples.
[311] Dr Howitt’s evidence, based on his 20 years’ experience working in laboratories was that degradation could occur when samples are stored and, in particular, when they are frozen and then are thawed.
[312] Dr Wan believed that the experts called by the Respondent had over-interpreted the significance of negative results. He said based on his experience of testing blood samples in laboratories over a period of some 30 years, the negative results from the tubes 7 and 8 of blood sample 129275, tested some two years later when compared to the consistent findings of TC in the other six tubes analysed by the other laboratories on separate occasions within two weeks of sampling, was not surprising. He believed that the TC in these samples had degraded during prolonged storage and transportation to a point where it was no longer detectable, particularly in the absence of the inhibitor being placed into the sample at the time the sample was initially stored. The purpose of an inhibitor (such as sodium fluoride), we accept, is to ensure that a sample does not degrade; an inhibitor is used to arrest the degradation of the sample. This supports Dr Wan’s opinion that where an inhibitor is not used when a sample is initially stored, it is not surprising to see a level of degradation.
[313] The contrary view was expressed by Mr Reeve who said that he would not expect to see this level of degradation in frozen samples as he would not have expected any further deterioration to occur as a result of enzyme activity. From his biochemical background, he could not understand how that could happen that rapidly. He acknowledged that this opinion was not based on research but was just the general knowledge of biochemists and enzymes. He said he could not understand how TC could be found in some samples and yet two years later there was absolutely nothing there at all. Esterase activity does not occur in a frozen sample, so there could not have been any degradation of TC in tubes 7 and 8 during the two years between testing of those tubes and the earlier tubes.
[314] Mr Reeve’s evidence was that degradation of a frozen sample during storage would be “pretty minimal”. He agreed with Mr Howitt’s evidence that deterioration could occur during the thawing and freezing process and accepted that he could not rule out this process as explaining the degradation. He said he would not have expected it to occur to quite the level that it seemed to have.
[315] Professor Shaw said at -20 degrees, it will “pretty well stop degradation” and -80 he would imagine there would be no degradation, although some studies he had done with different compounds had shown that sometimes at -80 there was degradation, but he would not expect it to be all gone.
[316] Dr Dunnett did not believe that storage for two years and the freeze/thaw process would necessarily lead to degradation to the point there was nothing left. He believed it would not degrade to that extent over two years. He believed there was something wrong in the procedure that had caused such different results. The only explanation he could see for this was contamination, but he later stated that it would be “very hard to envisage how you could contaminate two out of at least six tubes that were sealed.”
[317] When considering the possibility of degradation being an explanation for TC no longer being detectable in sample 129275 two years later, a further key fact is that degradation appears to have occurred in the three-day period between the screening and the confirmatory analysis. Mr Howitt said he observed a significant drop (40 to 44%) in the apparent levels of TC in the sample. This suggests that some degradation was occurring at that time despite the sample being stored in a freezer at -80 degrees.
[318] Dr Dunnett addressed this and stated that he would not have expected a large amount of degradation within the three-day time period at the laboratory. He commented with reference to the Grey (2013) study, the sample should not have changed that much in such a short period of time, which raised the freeze, thaw, storage temperature, stability issues.
[319] We further observe Dr Dunnett’s agreement with the statement it was more likely than not that six out of the eight tubes were contaminated, the other two were not, and that the two tubes that were the B sample tested in Australia eight days later could not have been contaminated in the laboratory. The fact that these had TC in them, he believed pointed to contamination prior to the sample’s arrival in the New Zealand laboratory and he confirmed he did not believe contamination had occurred in the New Zealand laboratory.
[320] Again on this point, and with respect to Mr Reeve’s suggestion of inadvertent contamination, Mr Howitt said, “For that to be the case, it would need to have happened for the minimum three tubes at our laboratory and then the intact reserve sample would need to have been contaminated at the Melbourne lab.”
[321] The analysis of sample 129275 conducted by the HKJC in October 2019 and that conducted by NZRLS in December 2019 both returned negative results. We are satisfied the negative result from tubes 7 and 8, which were stored for some two years before being tested, is likely from degradation during storage and the freeze/thaw process. Dr Wan and Mr Howitt’s evidence was to this effect. We have not overlooked the fact that the Respondent’s experts state that they would have anticipated there would still be a detectable amount of TC in the sample at that time. But we prefer the evidence of the Informant’s expert witnesses which we believe is a more likely, more plausible, explanation of the conflicting results.
[322] With respect to the variances between sample 129275 and the blood sample some three weeks later, we received evidence as to the half-life of the drug to the effect that TC might be no longer in MISSANDEI’s system at a detectable level by the time the sample was taken. Dr Grierson estimated this to be about 48 days and Professor Shaw did not disagree, referring to a graph that demonstrated the possibility that it was the tail end of TC operating on MISSANDEI’s system.
[323] The negative result from the second blood sample is thus explicable by the fact it was taken three weeks later. Professor Shaw agreed with Dr Grierson that it is quite possible that due to the half-life of TC, by the time of the second sample the blood no longer contained sufficient TC to meet the detection level and was therefore reported negative.
[324] Professor Shaw said this would depend on the concentration to start off with. It could explain why the 18 October test was negative. TC could have been present but below the detection level, or not there at all. If there had been administration to the two horses and the administration to ARYA had happened a little earlier, he agreed this was a possible explanation for the presence of TC in ARYA (the trace) but below the detection level applied by NZRLS.
[325] We are required to assess the impact upon a positive result of a negative result, or in this case six tubes of blood that are positive, and two tubes and a subsequent blood sample that are negative. We are asked to draw the inference that TC was never present in MISSANDEI despite the confirmatory positive result. The Respondent states that the confirmatory test is not reliable. There is no evidence before us that would lead us to conclude that the integrity of this result is such that the negative results should be favoured over the positive, or in legal terms that they raise sufficient doubt that the Informant has not proved the charge on the balance of probabilities (as previously explained).
Subsequent hair samples
[326] Hair samples were taken from MISSANDEI on three occasions: 3 November 2017 and sent to RASL for analysis; 25 January 2018 and sent to HKJC laboratory for analysis — this was not accepted by HKJC because the necessary veterinarian certificate clearing MISSANDEI from disease did not accompany the sample; 31 January 2018 and sent to HKJC for analysis.
[327] The two tests were negative.
[328] The Respondent has pointed to the mishandling of the second hair sample as being a deficiency in the analytical process. A further sample was taken six days later and was accepted for analysis. This was negative and this result has formed a substantial plank of the Respondent’s defence to the charge. We fail to see how the rejection by the HKJC laboratory of the second sample has prejudiced the Respondent.
[329] The significance of the two negative hair results was the subject of evidence from experts in their respective fields: Dr Wan, Mr Zahr, Ms Wo and Mr Howitt, who gave evidence for the Informant, and Professor Shaw and Dr Dunnett for the Respondent.
[330] Again, their evidence has been recounted earlier in this judgment and we highlight only what we believe are the most salient points. The experts have agreed that there are no pharmacokinetic studies that are directly applicable when assessing TC in horses and opinions are based on predictive science. We view this as a matter for us to consider when assessing the weight we should attach to the expert evidence.
[331] Both Ms Wo, Dr Wan and Mr Zahr state that the fact different matrices produce differing results would not be entirely unexpected. While Professor Shaw and Dr Dunnett state that they would expect a positive result from the hair.
[332] Ms Wo was not able to be cross-examined, and we place less weight on her evidence, accordingly, but Ms Wo clearly states in her brief that it is not unusual to obtain different results from analysing two different biological matrices collected from the same horse covering the same exposure window. Detection would depend on a number of variables, including the amount, route and frequency of such exposure, as well as the detection limit of the method used for such detection.
[333] The situation with Mr Zahr with respect to cross examination is similar to that with Ms Wo. He said it was “not entirely unexpected” that TC had not been detected in a hair sample taken from a horse whose plasma sample had previously tested positive with TC, commenting it was likely due to the TC being present in the hair at a concentration lower than the limit of detection of the method of analysis.
[334] Dr Wan commented orally, “It’s always my opinion that there’s no requirement to have more than one matrix of samples collected from the horse to be tested positive in order to show that the relevant horse had been exposed to that particular substance.”
[335] Mr Howitt explained one possibility for the negative hair result was that TC collected in the bloodstream and when the hair came to be analysed, any TC that might be present was not detected because it was well below the limit of detection of the method.
[336] Professor Shaw said it was difficult to rationalise the findings with respect to blood and hair. He would have expected to find TC in the hair as well as the blood, but there was no direct data to show that. He referred to Dr Wan’s opinion that it was not surprising that there were different results in the blood and the hair, saying it was “surprising on pharmacokinetic grounds”, but added “these are all opinions because there are no facts to base it on.”
[337] Professor Shaw agreed with Dr Wan’s comment that one off drug exposures, especially with a small dose, might not be detectable in hair and that was either because the substance did not make its way into the hair follicles in the first place, or because it was such a small amount that it was not detectable using the analytical methods. He believed the second scenario to be the more likely. He added two riders: first, questioning who would give a horse a tiny dose because it would have no effect on the horse; and secondly, from MISSANDEI’s blood levels, it was probably quite a high dose. If it was a high enough dose to have an effect on the horse, he thought it would be detectable in both.
[338] On this issue, Professor Shaw concluded in his report of 22 February 2024, which commented on Dr Wan’s statements of 24 July 2018 and 24 October 2023, “that TC would be present in hair if it was present in blood is a reasonable assumption based on published studies for other steroid esters.”
[339] Dr Dunnett stated that in his opinion, given the similarities between TC and certain other Testosterone esters, it was “highly probable” that TC would be incorporated into hair and thus be detectable by instrumental mass spectrometric techniques. Testosterone ester, he said, is not always detected in hair samples taken at different time points. However, it was more likely to be found in those time points subsequent to administration which were closest to the point of administration. The further away in time, the less likely it is to find it.
[340] Big unknowns had MISSANDEI been injected with TC, were the site of the administration and, more particularly, the dose. Dr Dunnett agreed that these variables would impact upon whether or not TC was detected.
[341] Dr Dunnett said with respect to Dr Wan’s comment that differing results from different matrices was not an abnormal situation and not unusual, that Dr Wan was on a day to-day basis involved in multiple regulatory investigations, so he would have a better knowledge of that than he would. The Respondent questioned the weight that could be placed on this concession, emphasising that Dr Wan had acknowledged that the Hong Kong laboratory did not have expertise in analysing TC. We view the comment as Dr Dunnett acknowledging Dr Wan’s 30 years’ experience in the Hong Kong laboratory of analysing various equine samples. We note also Dr Dunnett’s lengthy experience, particularly with analysing hair.
[342] Significantly, Dr Dunnett agreed with Mr Dow that there were effectively three possibilities: MISSANDEI did have TC but that did not hydrolyse into the hair follicle; it did hydrolyse but it was at such a low concentration at the point that it was tested that it was not detected; TC was never in MISSANDEI’s system. He further agreed the first two possibilities would be consistent with the adverse analytical finding in blood. The third would not be and would require some further explanation as to how TC got into the blood. Contamination was a possibility, but he was “not being definitive in this.”
[343] We clearly have conflicting evidence on this issue. The Respondent’s experts say TC should be there — Professor Shaw says it is “a reasonable assumption”; Dr Dunnett says it is “highly probable”; the Informant’s witnesses say its absence can be explained.
[344] Dr Wan is an eminently qualified racing chemist who works extensively in this field. He has been testing blood samples in laboratories for over a period of some 30 years. Dr Dunnett is also very experienced in this field. He is an equine toxicologist.
[345] The WADA guidelines, which apply to human athletes, do assist in that they state, “Negative result in hair shall not counter a positive result in blood.” This is the very conclusion that the Respondent is asking us to draw in this case with respect to the horse, MISSANDEI. We see this as adding weight to Dr Wan’s evidence that it is entirely plausible and not unusual for there to be a variance in results from samples taken from the same horse during the same exposure window.
[346] In these circumstances, we prefer the Informant’s expert witnesses to that of the Respondent’s whose evidence on this point is to the effect it would be expected that TC would also be in the hair if TC was in MISSANDEI’s system, rather than TC simply being found in the blood sample.
[347] The negative hair results do not lead us to conclude that the charge is not proved on the balance of probabilities because blood sample 129275 was contaminated or that the confirmatory result is not reliable.
The testing of the B-sample
[348] NZRLS reported the TC positive to the RIU on 4 October 2017. Mr Howitt, the manager of the laboratory, was concerned as to degradation of the sample, particularly as further testing indicated a significant loss. He was concerned that the sample might degrade to the point that it could no longer be used for B sample testing if testing was not done immediately. He advised the RIU that the B sample would need to be tested at once to confirm the presence or absence of TC.
[349] The Swabbing Instructions provide that once the Owner and Trainer has been advised of any analysis which indicates that a prohibited substance may have been administered to a horse the Owner, or his authorised representative, or the Trainer has until 4.00 pm on the third working day after notification to request the reserve sample (if one is available) and reserve control sample (the “B sample”) to be analysed at a laboratory approved by HRNZ.
[350] It is clear, therefore, that the Respondent has a right under the Swabbing Instructions to have the B sample tested. However, the General Manager of the RIU, Mr Godber, after discussion we understand with Mr Grimstone and Mr Irving, formed the view that the likely degradation of the sample meant that urgency was necessary, and he decided that the B sample should be sent to the RASL laboratory in Melbourne, Australia. Mr Negus was not consulted and therefore he did not consent to this.
[351] This decision by the Informant unilaterally to have the B sample tested was compounded when Mr Irving in the course of interviewing Mr Negus, asked him whether he wanted the B sample tested. Mr Negus’s reply was “No”, but of course there was no B sample to be tested. This had already been done and the positive result from the A sample was confirmed. The Respondent submits that Mr Negus may have changed his mind on this matter after due consideration or after taking legal advice; however, he did not. The further submission was that Mr Negus was denied the opportunity for the B sample to be sent to an accredited laboratory of his choice and to go into the NZRLS laboratory and check and look at the packaging of that sample. Again, as he chose not to have the B sample tested, he was not denied that opportunity.
[352] Mr Irving has explained his error when interviewing Mr Negus being due to his understanding that further tubes of the sample had been sent to Australia and his belief that the B sample was still available to Mr Negus. This confusion has not assisted the Informant’s case.
[353] As Mr Negus said, he may have subsequently changed his mind, and indeed Mr Casey the owner of the horse, did ask for the B sample to be tested. This was sometime later, and long outside the 72 hour window provided in cl 2 of the Swabbing Instructions. Thus, in the circumstances that prevailed, Mr Negus was not prejudiced in his ability to send the B sample to a laboratory of his choosing.
[354] The Respondent states the reason the RIU breached the Rule was based on science that was wrong. The advice as to degradation of TC and the need for immediate testing of the B sample that was given to the RIU was erroneous, as if the sample was frozen it would not degrade.
[355] We find Mr Howitt’s anxiety that were degradation to continue at the current rate, the B sample would be rendered useless, understandable. The submission by the Respondent that he should have been aware that freezing the sample would arrest the degradation and therefore there was no urgency, takes little account of the urgency and uniqueness of the situation which confronted Mr Howitt, and which was ultimately conveyed to the RIU, specifically, Mr Godber. The evidence is not unequivocable on this issue of degradation, and we believe Mr Howitt’s witnessing of the substantial degrading of the sample led him to form an honest and, in the circumstances, as he believed them to be, a reasonable opinion that the B sample should be tested with some urgency. It was not his decision that Mr Negus not be notified; that was made by Mr Godber.
[356] Mr Dow in his oral submission stated with reference to the B sample, “In a different case, I would not have led that evidence at all but because of the challenges to the entirety of the analytical process, it was proper that all of the evidence about the analytical process is placed before the Committee so it can consider the totality of those analytical results and the significance of all of them in context but the sample tested by NZRLS proves the charge.”
[357] The Respondent has referred to the Swabbing Instructions (see [9]) and has stated that cls 5 and 6 identify two specific situations in which the fact there is no B sample will not provide a defence to a charge. The sending by the Informant of the B sample for analysis is not one such situation. The Respondent has submitted that the Regulations set out what failures will not be a defence and therefore other failures must be a defence. This, it is said, as a principle of statutory interpretation, should lead the Adjudicative Committee to a conclusion that any other failure to follow the directions is a complete defence; in other words, to conclude that the fact that the B sample was not available to Mr Negus should result in our finding the charge is not proved.
[358] Clauses 5 and 6 of the Instructions provide that a charge can be proved on the basis of the A sample alone, without the need for there to be a B sample where there is insufficient blood for a B sample, or the B sample is lost or damaged. The consequence being that the A sample is sufficient to provide the foundation for (and to prove) the charge. That is the purpose of these provisions. It does not follow, as a matter of interpretation, that any other reason for there being no B sample is a complete defence to the charge. Contrary to the Respondent’s submission, we hold the fact that the Regulations (Swabbing Instructions) set out certain matters in cls 5 and 6 that cannot be defences does not mean that any other situation in which there is no B sample (in this case due to a failure to follow cl 2 of the Instructions), is a complete defence.
[359] To put this issue in simple terms: the B sample should not have been sent without the matter being discussed with Mr Negus. The B sample is the Respondent’s sample. It is not there to be used by the Informant, despite their best intentions. It is clear that the RIU were not in a position at the time the decision to send the B sample was made to investigate the matter further by way of a full interview with Mr Negus and a search of his property, as Mr Irving has explained in his evidence.
[360] This action by the Informant forms part of the base to the Respondent’s argument that there has been an abuse of process. It is a matter that has concerned this Committee but in light of the fact the charge is able to be proved on the basis of the A sample alone, we do not believe it is fatal to the Informant’s case, as is alleged by the Respondent. With reference to the testing of the B sample, the Australian laboratory is an Internationally accredited laboratory, and the B sample also was positive to TC. We see no prejudice to Mr Negus in that laboratory undertaking the testing.
[361] The Informant’s handling of the B sample was unwise; indeed it was contrary to cl 2 of the Swabbing Instructions, but in the circumstances of urgency that were viewed to prevail, it is understandable. The use of the B sample, even in these circumstances, was not permitted by the Swabbing Instructions, but ultimately this did not impact upon the Respondent’s defence to the charge as no request was made within the three-working day window.
RIU visit to Mr Negus’s property on 18 October 2017
[362] A further plank of the Respondent’s allegation of abuse of process is the actions of the RIU when visiting Mr Negus’s property.
[363] With respect to the events of 18 October 2017, we find that six members of the RIU were at the property, named individuals are Mr Lamb, Mrs Williams, Mr Allison, Mr Grimstone, Mr Ydgren, and Mr Irving. Dr Corser was also present. Both Mr Irvine and Mr Grimstone state there were no instructions given to lock down the property or to detain people. However, we are satisfied from the evidence of Mr Webster and despite Mr O’Leary’s letter never being produced due to his passing, we accept pursuant to cl 17.1 of the 5th Schedule to the NZ Rules of Harness Racing, that Mr O’Leary had said to Mr Negus that he was prevented from entering Mr Negus’s property to offer his condolences to Mr Negus on the death of Mr Negus’s father.
[364] We find that access to the property was prevented by the manner in which Mr Lamb had parked his vehicle. This had been done in such a way to prevent the gate, which opened inwards, from so doing. Mr Webster’s and Mr Tate’s evidence is to this effect. We accept the evidence of both Mr Irving and Mr Grimstone that they were not aware of this. There is no evidence before us that this was a deliberate ploy by the RIU, and we do not draw that inference. There is no evidence that Racing Investigators stopped anyone from leaving the property.
[365] We further find that Mr Lamb instructed Mr Webster to place his cellphone on a table. Mr Webster believed other cellphones were on the table, but he has not identified to whom these belonged or the circumstances in which they came to be there, and we put that further evidence to one side. There was no instruction to Mr Webster that his phone was not to be used, but that was the inference he drew and that is understandable.
[366] There was no evidence of a search of Mr Negus’s premises other than the stable. We accept that neither Mr Negus’s consent to the search nor to his being interviewed by Mr Irvine was obtained, but the Rules do not require this. Rules 223(3) and 226(2)(b) empower Racing Investigators to enter upon the property of any licensed person and enter any building, room or place and to question any person with respect to any matter connected with Harness Racing. In any event, Mr Negus has said that he was happy to be interviewed by Mr Irving and he would have permitted the search, if asked. Nothing incriminating resulted from the interview or the search. There has been no submission that evidence be excluded for a breach of the New Zealand Bill of Rights Act 1990.
[367] The RIU operation clearly appears to Mr Negus and Mr Webster to be heavy-handed. But this has to be viewed in the light of this being the first positive result to TC in any code on the New Zealand racing scene, and the RIU being unaware of the nature, scale or extent of any breach of the Rules. We do not find the events of 18 October 2017 to constitute an abuse of process.
Summary
[368] Mr Langbehn at the conclusion of the Respondent’s oral final submissions stated the Respondent’s position is that the data shows the tubes one through six had TC in the blood and that tubes seven and eight did not. He submitted that the expert evidence from the Respondent’s three witnesses should lead the Adjudicative Committee to conclude that these results were not reliable and did not enable us to draw the inference that MISSANDEI had TC in her system at the time she was tested. Ms Thomas submitted this evidence pointed to the sample being contaminated and again that this inference should not be drawn.
[369] Our assessment of the expert evidence then has to be undertaken in the context where eight tubes of blood were taken from MISSANDEI which comprise sample 129275, six returned a positive result to TC and two did not. We are required to conclude that either the processes/methodology adopted by two accredited laboratories in two different countries was erroneous, (although the Respondent, in effect, does not allege this, as he accepts the six tubes tested positive), or somehow two tubes of blood of the eight taken and sealed, and tested two years later were not contaminated, whereas the other six were.
[370] The experts are drawn from different but related fields. The Respondent questions Mr Howitt’s expertise, stating he did not know about TC half-life or elimination profiles and had never checked the science applicable to the matter. Mr Negus emphasises Mr Howitt’s expertise is with analysing samples, but we note, however, that is particularly pertinent to the issue of degradation that looms large in this case. He states also that Mr Howitt had no knowledge of how an ester may transfer into hair. With respect to Dr Wan’s expertise, the Respondent states that while they do not dispute his credentials in analytical chemistry, that was the extent of his expertise. We note that Dr Wan has been in charge of the Hong Kong Racing Laboratory since 1999. He is very experienced in the equine field.
[371] Mr Negus says we should prefer the evidence from their experts, who are pre-eminently qualified in their fields. We note the qualifications of their experts: Dr Dunnett, a toxicologist and analytical chemist with particular expertise in the matter of equine hair; Mr Reeve, a toxicologist who has researched enzymes; and Professor Shaw, a Professor in toxicology. Mr Negus says their evidence is to the effect that the data does not fit any known science, (toxicology, biochemistry or pharmacokinetics). We have assessed the expert evidence with these submissions in mind.
[372] Clause 17 of the Fifth Schedule to the Rules provides that we may permit a person appearing as a witness before us to give evidence by tendering their written witness statement. The Respondent submits we should not place too great an emphasis on Ms Wo’s and Mr Zahra’s evidence as they were not able to be cross-examined. Similarly, they were unable to cross-examine Dr Wan with respect to his second and third written briefs, although both Professor Shaw and Dr Dunnett commented at some length upon Dr Wan’s evidence in these briefs. The Informant has countered on this last point by stating that they did not rely upon Dr Wan’s third statement and had not referred to it in their final submissions. We have not placed any weight on Dr Wan’s third statement.
[373] The Respondent’s experts have stated they would have expected TC to be found in the subsequent testing of MISSANDEI, both blood (all three experts) and hair (Professor Shaw and Dr Dunnett).
[374] We accept the Informant’s submission that a significant limitation upon the evidence of the Respondent’s witnesses with respect to hair is the fact that there are no pharmacokinetic studies that have assessed how TC is processed in horses or how TC is deposited in hair follicles of horses exposed to TC and as a result, the witnesses all rely on other studies and their knowledge of underlying scientific and biological principles to apply predictive science. As we have noted previously, Dr Dunnett accepted that Dr Wan would have better knowledge of this than would he, based on Dr Wan’s “day to day involvement in multiple regulatory investigations”.
[375] The negative hair results we are satisfied are explicable, as Dr Wan says, by the different matrices. His written and oral evidence is that it is not an abnormal situation and not unusual to observe a positive finding from the analysis of one biological matrix and yet a negative finding from the analysis of another biological matrix collected from the same horse and covering the same exposure window. His conclusion was that there was nothing unusual about the conflicting results obtained from MISSANDEI.
[376] This conclusion is supported as we have noted (at [345]) by the WADA Code. We take guidance from this, but in attaching weight we note that it relates to human athletes and the Respondent’s submission that it should be viewed solely in that context and that Professor Shaw stated the WADA standard does not appear to be based on any scientific evidence. However, with reference to WADA, Professor Shaw also accepted in his evidence that the pharmacological or pharmacokinetic principle is a helpful guide to apply to horses. Dr Dunnett said hair testing was increasingly used in out of competition testing under IFHA rules and the testing strategy was established and robust.
[377] With respect to blood, the Respondent’s experts do not accept that degradation is a viable explanation for its complete absence two years later, but rather it could be an explanation for a lower level being found. The only lower level, of course, was that found in the confirmatory test, which was conducted three days after the screening test.
[378] Degradation is supported by the evidence of Dr Ho, Mr Howitt, and Mr Zahra.
[379] The experts were reluctant, understandably, to speculate as to the reason for the conflicting results. Dr Dunnett suggested contamination might be “a potential explanation” and referred in his brief to methodological and procedural inconsistencies, deviations from best practice, and conflicting analytical findings. He also suggested chain of custody issues. We have recounted the evidence relating to this and find no break. Again, this would not satisfactorily explain the six positives and the two negatives.
[380] Professor Shaw agreed that he could not point to any evidence to support a theory of contamination other than the apparently contradictory analytical results.
[381] The Informant’s witnesses all proffer the explanations of degradation (blood) or the fact that different results from different matrices (blood and hair) is not unexpected.
Conclusion
[382] We are required to assess the impact upon a positive result of a negative result, or in this case six tubes of blood from sample 129275 that are positive, and two hair samples that are negative and two blood tubes from sample 129275 and a third later sample that are negative. We are asked to draw the inference that TC was never present in MISSANDEI despite the confirmatory positive result. The Respondent states that the confirmatory test is not reliable. However, the evidence before us is not such that would lead us to conclude that the integrity of this result is in sufficient doubt that the negative results should be favoured over the positive.
[383] The Informant must prove the charge on the balance of probabilities, with regard being had to the seriousness of the charge (Z). The Respondent has identified a number of times where the actions or omissions of the RIU were far from “best practice”, but none of these, nor their cumulative effect and a weighing of the evidence of the Respondent’s experts, raises sufficient doubt as to the integrity of the sample such that we cannot be satisfied that the charge is proved. The Informant’s evidence is supported by the fact that six tubes were positive, and, significantly for proof of the charge, that the confirmatory sample was positive.
[384] Mr Negus is the trainer of MISSANDEI, and the horse has returned a positive to TC. The charge is not that Mr Negus administered TC to MISSANDEI. The evidence is equivocal as to when administration would have occurred. The evidence before us is that is likely to have been within the past two months. The horse had been off Mr Negus’s property at the commencement of that period. In addition, no TC, needle, or other evidence implicating Mr Negus (or any other person) was found during the RIU search. In these circumstances, an administration charge against Mr Negus would be most unlikely to succeed. But the charge is being the Licensed Trainer in control of a horse that had detected in it the prohibited substance, TC. Mr Negus is the trainer of MISSANDEI, he was in control of the horse at the time of the test, in that she was in his stable, and the confirmatory testing of the A sample by NZRLS showed the presence of TC.
[385] In these circumstances, we find the charge proved.
[386] We require written submissions as to penalty and costs.
[387] We would normally require the Informant to file their submissions within 10 working days of the date of this decision and the Respondent to reply within 10 working days of receipt of the Informant’s submissions. However, the holiday break impacts upon this timeline.
[388] In these circumstances, we require the Informant to file their submissions by 3 pm 27 January 2025 and the Respondent to reply by 3 pm 11 February 2025.
[389] We grant leave for the parties to apply to the Adjudicative Committee for further directions should these dates not be suitable.