Non Raceday Inquiry – Decision dated 9 August 2021 – Andrew Campbell

DECISION OF THE ADJUDICATIVE COMMITTEE
[1] Information A8494 alleges “On Tuesday the 18th of May 2021, at Cambridge, the Respondent, Mr Campbell being the Registered Trainer for the time being in charge of the horse “2c Flying Artie – Dynastic Lady”, which was brought to the Cambridge Jockey Club Trials held at the Cambridge Racecourse for the purpose of engaging in, and did engage in Heat 11, when the said horse was found to have in its metabolism a Prohibited Substance, namely Dexamethasone which is in breach of NZTR Rules of Racing, r 804(2) and is therefore subject to the penalty or penalties which may be imposed pursuant to rr 804(6) and 804(7)”.

[2] Rule 804(2) provides: “When a horse which has been brought to a Racecourse or similar racing facility for the Purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules.”

[3] The penalty provision is r 804(7) which states: “A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be liable to:

(a) be disqualified for a period not exceeding five years; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $25,000.”

[4] Mr Westerlund produced authorisation to lay the Information.

[5] Mr Campbell signed the Information admitting the charge.

[6] The parties agreed to the matter being dealt with on the papers.

Summary of facts

[7] Mr Campbell is the holder of a Class A Trainer’s Licence issued by NZTR.

[8] On Tuesday 18 May 2021 the horse “2c Flying Artie – Dynastic Lady” was correctly entered and started in Heat 11 of the Cambridge Jockey Club Trials at the Cambridge Racecourse.

[9] The two-year old colt “Flying Artie-Dynastic Lady” dropped its Rider at the gates and was declared a non-finisher in the seven-horse field.

[10] The horse “2c Flying Artie-Dynastic Lady” was randomly selected for a pre-race swab. The horse was accompanied by Brendan Harrison. A blood sample was obtained at 11.52am approximately 38 minutes before the trial commenced at 12.30pm.

[11] Both Mr Harrison and the RIU Veterinarian, Dr Emily Kearney, reported that there were no difficulties or irregularities with the collection of the blood from the two-year old colt.

[12] At the conclusion of the Trials the samples were checked by a Racecourse Investigator and then placed in a tamper proof security bag with other samples taken that day and forwarded to the New Zealand Racing Laboratory in Auckland.

[13] On 8 June 2021, a Certificate of Analysis signed by Mr Rob Howitt, the Official Racing Analyst at the New Zealand Racing Laboratory advised that the sample taken from the horse “2c Flying Artie-Dynastic Lady” had been analysed and contained the prohibited substance Dexamethasone.

[14] Dr Andrew Grierson the Chief Veterinarian for NZTR states that Dexamethasone, a corticosteroid, is commonly used in veterinary medicine and administered either orally, or as an injection into the vein or muscle, a topical cream or ointment to the skin or a topical ophthalmic ointment or solution. Dexamethasone has anti-inflammatory properties used to treat arthritic conditions, allergies, asthma, chronic obstructive lung disease, brain swelling, skin and eye irritation, and a series of other conditions.

[15] Dexamethasone and metabolites thereof are prohibited substances in the Prohibited Substances Regulations for the Rules of Racing when detected in a urine and/or blood sample taken from a horse at the races or trials. Dexamethasone has a withholding period of 4.2 days.

[16] On Thursday 10 June 2021 Mr Campbell was interviewed at his property in Cambridge. He was informed that the drug Dexamethasone was present in the blood sample taken from his horse.

[17] He stated that the horse had a slight puffy eye, and he was given an ointment by his vet to treat it. He applied a fingertip amount to the eye on the afternoon before the horse trialled the next day. He was not aware that Dexamethasone was a prohibited substance.

[18] Mr Campbell produced the ointment that was used to treat the horse. The product is called Maxitrol Eye Ointment and is a sterile ointment that contains the active ingredients Dexamethasone, Neomycin and Polymyxin B.

[19] Mr Campbell has been involved in the Thoroughbred Racing Industry all his adult life and has been a Class A Trainer for 25 years.

[20] He has no previous breaches of the Prohibited Substance Rule.

Decision as to breach

[21] As Mr Campbell has admitted the breach of r 804(2), is it found to be proved.

Informant’s penalty submissions

[22] Mr Westerlund stated that the four principles of sentencing could be summarised briefly:

Penalties are designed to punish the offender for his/her wrong-doing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence, but the offender must be met with a punishment.

In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

A penalty should also reflect the disapproval of the Adjudicative Committee for the type of offending in question.

The need to rehabilitate the offender should be taken into account.

[23] Only the first three principles had relevance in this matter.

[24] The RIB referred to four previous decisions by the (then) JCA which Mr Westerlund believed were of assistance:

RIU v Pertab (06.05.19) – positive test to Meloxicam at the Matamata Racing Club Trials on 19 March 2019. The penalty imposed was a fine of $3,000 and the horse disqualified.

RIU v Lucock & Gillespie (22.07.18) – positive test to Meloxicam at the Avondale Jockey Club Trials on 15 May 2018. The penalty imposed was a fine of $2,800 and the horse disqualified.

RIU v Hall (19.08.17) – positive test to Meloxicam at the Waipa Racing Club Trials on 30 May 2017. The penalty imposed was a fine of $3,000 and the horse disqualified.

RIU v Brick (15.09.16) – positive test to Phenylbutazone and Oxyphenbutazone at the Whakatane Trials on 2 August 2016. The penalty imposed was a fine of $3,000 and the horse disqualified.

[25] The Informant identified the mitigating factors to be:

• the Respondent has admitted the breach at the first opportunity;
• the Respondent has been fully co-operative throughout the process;
• the Respondent has been involved in the Racing Industry all his adult life;
• there is no evidence to suggest that the offence was deliberate and designed to obtain a favourable financial advantage other than the treatment for the ailment and to care for the animal’s wellbeing;
• the Respondent has a blemish free record of offending against or breaching of the Rules of Racing.

[26] The Informant noted that legal precedent provides that Trainers have an absolute liability for presenting their horses free of prohibited substances. The RIB submitted that the Respondent should have been aware of the 4.2 days withholding period when treating a horse with Dexamethasone before taking the horse to the Trials. Lack of knowledge that his actions were a breach of the Rules is not an excuse. (We add that the Respondent’s admission of the breach and his submission as to penalty acknowledges this fact.)

[27] The Prohibited Substance Rule imposes an absolute obligation on Trainers, and where applicable, the person in charge of the horse, to ensure horses are presented to race free of prohibited substances regardless of how the prohibited substance came to be present. This standard is reflected in the following decisions:

[28] In Coulson (1993) it was stated:

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

[29] In Nicholson (1994) the Authority stated:

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

[30] In Lamb (1998) it was said:

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

[31] In Bentley (1998) the Appeals Tribunal stated:

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

[32] In Justice (2012) the Appeals Tribunal said:

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

[33] In Scaife (2012) the Appeals Tribunal stated:

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

[34] In RIU v Lawson (2019) the Appeals Tribunal commented:

Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry/and those who are to deal with the profession. Disciplinary sanctions are designed for some important different purposes, and although guidance can be gained from the criminal jurisdiction, there are broader considerations.

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

[35] This decision was said by the Informant to mark a clear shift in the approach to imposing sanctions for a breach of Racing Rules and to correctly bring a disciplinary approach.

[36] The RIB did not consider the Respondent to be a habitual offender and he was not a person of low moral character that would bring the Thoroughbred Racing code into “disrepute” should he remain in this profession.

[37] The RIB believed however that breaches of the Rules should be penalised, and that the penalty should reflect the Industry’s clean racing image and remind participants of their obligations under the Rules and precedents set.

[38] The RIB believed that this breach could be dealt with by way of a fine. It submitted that a fine of $3,000 should be imposed.

[39] The RIB did not seek costs.

[40] An order for the disqualification of the horse “2c Flying Artie-Dynastic Lady” from the trial was sought pursuant to r 804(8).

Respondent’s penalty submissions

[41] Mr Campbell provided written penalty submissions on 20 July.

[42] Mr Campbell stated he trained “2 c Flying Artie-Dynastic Lady” (RIVER PLATE) which had returned a positive swab to Dexamethasone at the Cambridge trials on 18 May.

[43] Mr Campbell said the fine that the Informant had submitted was appropriate in this case was “outrageous”. He did not deny that he gave the horse one treatment of eye ointment the night before the trial as it had a slightly swollen eye. However, he was not aware the ointment, which the veterinarian, Mr Ian McKay (who is part owner of the horse) had left for it, was swabable. If it was just a jump out, he would not have rubbed the ointment on its eye, as he would not have bothered. But because it was a public trial, it would not have been a good look sending a horse around with a partly swollen eye for all the public to see. He emphasised that he had always had pride in the way his horses were turned out.

[44] The ointment was just to rub around the horse’s eye for swelling. It was not injected nor orally given. It had only the one treatment. He agreed he should have known, but perhaps the vet should have advised him too. He noted he very rarely used vets except in emergencies or for things that he could not do myself. He emphasised that he had given the tube straight away to the Investigator, Mr Cruickshank, who saw and noted that very little was used from the tube.

[45] The vet (Mr McKay) said the amount of Dexamethasone would have been so minute, he was very surprised it was even detected in the blood test.

[46] The horse was scratched at the barrier after dropping its rider. The horse trialled at Te Rapa the following week and won well. They had received offers of good money for the horse, but the owners were not sellers. This emphasised the point that there was never any intention to use a performance enhancing drug.

[47] Mr Campbell said he had been a Public Trainer for 25 years plus and had never had a fine or a charge against him, including racing horses in the strictest places in Australia. He believed the recommended fine of $3,000 was very high in comparison to another case recently where a horse actually won a race then returned a positive. He commented, “Not only did the owners lose, so did the punters. The only one losing in my case is myself and my pride.”

[48] We add here that Mr Campbell is referring to the VAMOS BEBE case (2021) where the horse returned a positive to Morphine. The Racecourse Investigators were advised that the sample from VAMOS BEBE was consistent with the possible consumption of poppy seeds and was not consistent with the administration of any pharmaceutical grade morphine. The Trainer, Mr Richards, was fined the sum of $1,500 and ordered to pay laboratory costs.

[49] Mr Campbell also referred to an incident at the Auckland races where Track staff were tapping back when a two-year-old race was being run. The owner of the second horse was adamant it had cost his horse the race. Not only was this incident very dangerous to the staff on the track, it had also cost Owners, Punters, Breeders and could have quite possibly been tragic not only for the Jockeys but for the horses as well. No one was charged or fined. He believed his case was insignificant to what had occurred there.

[50] Mr Campbell said the breach had had a huge impact on his life personally and his career. His owner, Tommy Heptinstall, has decided to wind down racing horses in New Zealand. He was astonished that the RIB had charged the Respondent. He believed Mr Campbell should only have been issued with a warning.

[51] Mr Campbell concluded his submission by stating “the racing game has been a massive part of my life and has taken me to some fantastic places. I have met people you could only dream about meeting and made plenty of great friends.” He was now re-evaluating whether he would remain in the industry. He reiterated the effect the charge had had on himself and his family.

[52] Mr Westerlund did not respond to the Respondent’s submissions.

Decision as to penalty

[53] The Informant is correct when he states that the obligation upon a Trainer is an onerous one. Liability is absolute (Justice v HRNZ [2012] NZHC 3484) and a trainer has to be appraised of the Rules and be hyper-vigilant. Unfortunately on this occasion Mr Campbell, despite his many years of experience and his unblemished record, was not. We can only speculate that this may have been because the ointment was given to him by an experienced vet, whom Mr Campbell might understandably have expected to have informed him that it was a prohibited substance with a withholding time. Perhaps the fact it was only a little dab to the eye may have misled him as well. But the onus is on Mr Campbell, of course, to present the horse to race, drug free, whatever the circumstances, as his admission of the breach rightly recognises.

[54] We were not informed why attendance at this particular trial was important to the horse. The horse had a puffy eye; it may have been a wiser decision not to race the horse, rather than to treat it close to the day on which it was intended to race, and then to race it, especially when Mr Campbell was concerned as to how the horse would look on the day when presented in his colours.

[55] Credit must be given for the Respondent’s excellent record, in particular that this is his first drug-related breach in a lengthy career. We also have regard to his clear remorse, and his admission of the breach, although this could be viewed as inevitable given the wording of the Rule and its interpretation in the High Court in Justice, and the personal toll the breach has had upon Mr Campbell and his family. We also note his immediate and full co-operation with the RIB investigation.

[56] The Committee does not view the decision in Lawson (2019) as being as ground-breaking as the Informant suggests. The need to uphold the Integrity of Racing, in all three Codes, has long been at the forefront of disciplinary decision-making. It is wrong to suggest otherwise. We thus take guidance not only from Lawson but from prior decisions, and, in particular, those cited to this Committee by the Informant.

[57] The need for racing to be drug-free is self-evident. The integrity of the Industry demands nothing less. We note that Lawson refers to “dishonest or immoral conduct”. We state clearly, as does the Informant, that this is not an accurate description of the Respondent’s conduct in this case, which we would view as momentary lapse of judgement, an act without thought to the consequences, by a Licence-Holder of otherwise excellent standing in the Industry.

[58] We note the breach was not on raceday. It was a trial. There is no evidence of any financial gain (eg by way of the sale of the horse) and, as there was no TAB betting, there is no suggestion members of the public were disadvantaged.

[59] Mr Campbell has asked that we consider the penalty in the VAMOS BEBE case. Mr Richards was fined $1,500, which is only half of the fine that the Informant has submitted is appropriate in the present case. We note the drug (morphine), and the circumstances of the breach (probable ingestion by way of poppy seeds) are very different to the case before us, and we take little guidance from that case.

[60] The penalties for a breach of this Rule in the cases cited to us by the Informant have consistently been between $2,800 and $3,000. The drugs are different: Meloxicam in three of the cases and Phenylbutazone (Bute) in the other. In each case the drug was given orally by way of a syringe. The drug in this case, Dexamethasone, was applied as an ointment by way of a dab to the eye. There is no level before us, as with it being a prohibited drug, the breach is established by mere presence.

[61] A search of the JCA website reveals only one previous case involving Dexamethasone. This is Brownlee (2009). Application there was by way of an injection within 48 hours of racing in circumstances that were described as involving “serious negligence”. The penalty was again a fine of $3,000. That breach occurred on raceday, and the Respondent had a previous drug-related breach of the Rules. That case is clearly a more serious breach of the Rule than is that by Mr Campbell.

[62] Mr Campbell’s degree of negligence is somewhat less than that in each of the cases we have considered. We view the manual application by way of a dab of ointment to the eye as not being as culpable as application by injection or by mouth. Treatment was for the animal’s well-being, although as we have noted, not starting the horse in the trial, always remained an option for Mr Campbell.

[63] Taking this factor into consideration, and the many personal mitigating factors, we believe a fine at a level slightly below that in Brownlee and that in the cases cited to us by the Informant, and on which their submission of a $3,000 fine is based, is appropriate.

[64] The penalty is a fine of $2,500.

Disqualification

[65] We order pursuant to r 804(8) the disqualification of the horse “2c Flying Artie-Dynastic Lady” (RIVER PLATE) from Heat 11 of the Cambridge Jockey Club Trials at the Cambridge Racecourse on 18 May 2021.

Costs

[66] The matter has been heard on the papers. There is no award of costs in favour of the RIB.

Dated at Dunedin this 9th day of August 2021.

Geoff Hall, Chairman