Non Raceday Inquiry – Written Penalty Decision dated 22 November 2023 – Mark Walker

Preliminary
1. Mr Galbraith KC accepted that if a Penalty Decision does not result in an order for disqualification, it may be determined on the papers. That has occurred.

The Charge
2. Mr Walker is a Class A Licensed Trainer of many years’ experience in New Zealand and Singapore who operates Stables at Matamata and Riccarton. He was charged with a breach of Rule 804(5) in that on 30 September 2022, he caused to be administered to the thoroughbred “BELLE OF THE BALL”, owned by the Te Akau Belle of the Ball Racing Partnership, at Riccarton, two substances, namely Marbocyl and Vitamin C by hypodermic syringe with the horse to race [and did race] the following day in Race 10 at the North Canterbury Racing Club Meeting at Riccarton on 1 October 2022.

3. This horse, and another “ILLICIT MISS”, were administered the 2 substances (“Marbocyl” and Ascor L500”) by hypodermic syringe sometime between 10.40am and 11am on Friday 30 September 2022. Both were required to be scratched to conform to the requirements of Rule 804(5). “ILLICIT MISS” was scratched. On his direction “BELLE OF THE BALL” was not scratched, and started, finished first and earned a stake of $17,250.

The Rule
4. Rule 804(5) is known as the “One Clear Day” Rule. Where relevant, it provides:

“… no person, other than a Veterinarian who is an Official, shall administer or cause to be administered, in any matter whatsoever, any substance other than a Permitted Substance to a horse entered in a Race … at any time during
(a) The one clear day, being the 24-hour period before 12.01am on the day the horse is to race.
(b) …..”

5. A permitted substance is defined in the Rules as being:

(a) Food or water, or
(b) Any substance, or class of substance, declared to be Permitted Substances by NZTR and appearing in a list of “Permitted Substances” issued by the NZTR.

6. Neither of the two substances administered to “BELLE OF THE BALL” are Permitted Substances under the Rule. But of course, these are not “Prohibited Substances”, and may be given to any horse but not within the 24-hour period, if the horse is to start. But this Rule does not relate to administration by way of injection (it says administration “in any manner whatsoever”). The Rule is designed to ensure that nothing, other than food, water or a declared Permitted Substance, can be given to a horse within the named 24-hour period (one clear day) if the horse competes in a race.

7. It was not until about 9 months after the race, in July 2023, that the RIB became aware of certain information which led Investigators to interview staff at the Riccarton Stables of Mr Walker and access a transcript of email exchanges (set out later) from a “WhatsApp” chat group in which Mr Walker and some staff, in both Matamata and Riccarton Stables; participated. As a result, the charge was laid, and Mr Walker was served with the Information on 25 July 2023.

8. A telephone conference with Counsel for Mr Walker and Mr Irving occurred on 31 August 2023, when Mr Galbraith KC advised that he was not in a position to enter any plea (of denial or admission) of the charge. He later advised that the Information would be defended. A fixture, suitable to Counsel, was set for 13 October 2023 at Te Rapa Racecourse. At the request of the Informant, 3 witness summons were issued by the Adjudicative Committee under Rule 915(8)(a) to require 3 persons (employees of Mr Walker’s Stables in Riccarton and Matamata at the relevant time) to attend for questioning at the hearing.

9. On Monday 9 October 2023, Counsel for the Respondent informed the Adjudicative Committee’s Executive Officer that he was instructed to “withdraw the not guilty indication and substitute a “no contest” plea – i.e., the charge is accepted”. Accordingly, the defended hearing for 13 October 2023 was vacated.

10. The matter has been determined on the papers including the Informant’s Summary of Facts and Appendix documents, the Informant’s Submissions as to Penalty; Mr Galbraith’s Submissions as to Penalty and Statements from Referees and others that he has presented.

11. The Adjudicative Committee’s Reasoned Decision follows.

12. Of course, a horse may be given medication or non permitted substances within the 24 hour period, as occurred with “ILLICIT MISS” which was scratched and the essence of the offence under this Rule relates to a horse racing, or intended to race, thereafter.  So that the offence is “crystallised” or “made complete” only when that occurs within the prohibited time.

13. In the weeks prior to the Riccarton Race Meeting both “BELLE OF THE BALL” (Stable name “KOKO”) and “ILLICIT MISS” (Stable name “BONNIE”) were stabled, along with about 10 other horses at the Riccarton Stables. The information the RIB received in July 2023 disclosed that both appeared to have elevated temperatures on the days prior to the meeting at which they had been accepted to race. That information was that both horses had been given intravenous injections to treat the temperature elevation and lowered blood counts which might point to some form of viral infection. The substances that were given were “Marbocyl”, an antibiotic primarily used for the treatment of respiratory infections, and Ascor L500 an Ascorbic Acid, Vitamin C in liquid form.

14. The Adjudicative Committee make it clear that the Rule has nothing to do with “performance enhancing” substances (in any event that is never used in any Rules as a designated term and often wrongly referred to by lay people as a relevant requirement under the Rules), but simply makes it an offence to race a horse if it has had a Non-Permitted Substance administered within the prohibited 24-hour period.

15. Mr Walker was employed as the “Private” Trainer by the Te Akau Syndicated operations to train for the many Owners in syndicates organised by it. As well, he assists and advises his employer on many matters relating to thoroughbred horses. He is a widely experienced successful and leading Trainer in New Zealand and overseas. Although he now has a training partner, at the relevant time in September 2022, he was the sole Trainer employed on a full-time basis by the syndicating organisation. His North and South Island operations had separate Forepersons and Stablehands.  So as to manage his extensive training facilities, a private email, confidential only to its participants, groups was setup. It was a “WhatsApp” group titled “TA South Island” which enabled Mr Walker and his staff in Riccarton (as well as some in Matamata) to have constant communication about horses at Riccarton.

16. The RIB had been supplied with a transcript of the email communications from the South Island chat group. Relevant parts were submitted to the Adjudicative Committee. Some of the exchanges are set out below. Apart from Mr Walker being identified as “MW” the other initials of persons relate to Senior and of some staff at Riccarton, Mr Walker’s Assistant in Matamata, and a Veterinarian at Matamata. It is not necessary to describe those other persons by name other than referring to their respective positions.

17. The horse “KOKO” is “BELLE OF THE BALL” and “BONNIE” is “ILLICIT MISS”. References in some messages to “SAA” are to a type of test, of which the Adjudicative Committee is aware, for a type of protein in horses where there is a nonspecific systemic reaction to any tissue injury. The blood of a healthy horse has a very low SAA which may increase if there is inflammation.

18. Relevant extracts from the email exchanges are:

Friday 30 September 2022
• 4.17am [from Stablehand] “Photo of logbook” (including temperatures KOKO 38.5, BONNIE 38.9).
• [M Walker] “KOKO and BONNIE have walk take SAA this morning. Temperature high. Thanks.”
• 4.20am [Matamata Assistant] “Photo of computer screenshot sent. SAA “KOKO BONNIE.”
• 4.25am [Riccarton Foreman] “Will do.”
• 4.37am [M Walker] “BONNIE been high all week. Hopefully SAA is ok. KOKO since she ate up just T & C [trot and canter] x 1. BONNIE walk only.”
• 4.53am [Riccarton Foreman] “Yep we’ll keep monitoring temps this morning.”
[M Walker] “Thanks.”
• Between 9.02am and 9.10am, general discussion re horses’ temperatures between Riccarton Foreman and Mr Walker’s Matamata Assistant.
• 9.12am M Walker: “See what SAA says.”
• 10.33am [Riccarton Foreman]: “Just got this from the Vets. The SAA are up a little bit. ILLICIT MISS 65, BELLE OF THE BALL 33. They both had low white count and low lymphocytes the start of the week so I’d say we are dealing with a bit of a viral insult.”
• 10.36am [Matamata Assistant]: Marbocyl and Vit C for both asap.
• 10.37am [Riccarton Foreman]: Okay will get on it.
• 10.38am [ Matamata Assistant]: Monitor temps and just see how bright they are really. ILLICIT MISS would be doubtful, might get away with running BELLE OF THE BALL from [named Matamata Stable Vet].
• 10.40am [Stable Foreman]: Ok will give them it now.
• 1.33pm [ Riccarton Stable Hand]: BONNIE temp came down to 38.3. KOKO still up 38.8. Both have had their Vit C and Marbocyl.
• 1.39pm M Walker: Thanks.
• 4.35pm [Riccarton Foreman]: KOKO temp 38.8. BONNIE 38.4. KOKO definitely still bright. Had a good buck out in the yards.
• 5.19pm M Walker: Thanks.

Saturday 1 October 2022
• 3.48am [Riccarton Foreman]: Photo sent of logbook (temperatures of both horses) BONNIE 38.0, KOKO 37.9.
• 3.49am M Walker: Thanks we scratch BONNIE. Run KOKO. [Matamata Stable Vet] said, Thanks.
• 3.50am [Stable Foreman]: Okay.
• 5.29am [Stable Foreman]: All racing ones trotted up good.
• 5.47am M Walker: “Thanks.”

19. ILLICIT MISS was then scratched.

20. After winning her race, “BELLE OF THE BALL” was post-race swabbed which returned clear of a Prohibited Substance. That is because these “Non-Permitted Substances” are not detectable.

21. On 11 July 2023, Investigators interviewed the staff members of the TA South Island WhatsApp group and were told by the Stable Foreman that he, with the assistance of a Stablehand, injected the two horses. Both said they were aware of the “One Clear Day” Rule. The Stable Foreman also said he had “presumed” that both horses would not be racing, but was “just following instructions” and that it was the Trainer’s decision to start “BELLE OF THE BALL”.

22. The South Island treatment diary later provided by Te Akau Racing did not record Marbocyl or Vitamin C being administered to the two horses on 30 September 2022, but the two horses then SAA counts were recorded.

23. Mr Walker, when interviewed by an Investigator, said that he was aware of the “One Clear Day” Rule but believed that it commenced at midday on the day prior to the races, not midnight, as he said this was the Rule in Singapore – 24 hours before the horse races. He said that he believed that when he last trained in New Zealand, there was no such Rule.

Penalty
24. Rule 804(7) provides:

A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (5A) 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.

25. Mr Irving contended that BELLE OF THE BALL had to be disqualified as it was a mandatory provision under Rule 804(8). The Respondent does not take issue with that.

26. Mr Irving referred the Adjudicative Committee to relevant issues in imposing penalties being:

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

He submitted that a period of 3 months disqualification was warranted given the Penalty “Guide” refers to a starting point of 18 months disqualification for a first “administration” offence.

27. The Adjudicative Committee records it does not see such a “Guide” as being necessary to adopt given that this offence, although based on “administration” is only created by failing to scratch. In this case, there was no offence until that did not occur.

28. Mr Irving referred to several cases in the Australian racing jurisdiction where various penalties ranging from fines of $4,000 / $5,000 to disqualification for 1-2 years were imposed. The Adjudicative Committee does not see those cases, based on their special facts, assist it. Mr Irving said, correctly that there are no similar cases, in fact and circumstances in New Zealand for breach of the “One Clear Day Rule” although referred to the Harness Racing Decisions of RIB v S Wigg and RIB v Jones (both very familiar to this Adjudicative Committee) where significant periods of disqualification followed. But those involved Raceday administration (“via oral drench x 3” and “intravenous injecting 2-3 hours prior to racing on Raceday”) which were of a very different character to the case before this Adjudicative Committee.

29. The Adjudicative Committee was also referred to three Victoria and New South Wales jurisdictions from 2017-2021, where penalties of a fine of $4,000 to disqualification of 1 and 2 years were imposed.

30. Mr Irving submitted that aggravating factors in Mr Walker’s case included:

(a) He had a recent Prohibited Substance offence in presenting a horse (TOKYO TYCOON) to race, and win, for which he was fined $7,000 and the horse disqualified, as was mandatory. He referred to a long-ago historic offence in 2000 for falsifying a certificate for which his Licence was suspended for 4 months, and he was fined $5,000.

31. The Adjudicative Committee is of the view that, dishonest as it was, that offence in 2000 is so historic as to be disregarded. And the TOKYO TYCOON offence, being very different on its facts, came several months after this breach (11 March 2023) and ought not be regarded as “aggravating” of this present earlier offence.

32. Mr Irving acknowledged Mr Walker’s extensive history in the Thoroughbred Racing Industry in New Zealand and overseas, and his final admission of the charge on 9 October 2023, and although at the latest possible stage, avoided a full day’s hearing and attendances of summonsed witnesses and Counsel, so as to lessen costs.

33. The RIB seeks an order for costs of $2,000 (representing 60% of those incurred).

Respondents Submissions
34. Mr Galbraith KC submitted six pages of comprehensive submissions together with character references from a respected Veterinary Surgeon, a renowned breeder and owner, a four page extensive statement by the employer (Mr D Ellis) of Mr Walker, a statement of a Riccarton Stablehand (a person who had been summonsed to attend to give evidence and be questioned), Mr Walker himself and a Racing Decision (RIB v Millar, fine $3,500, which referred to other New Zealand Decisions).

35. Those who have now offered opinions or made written statements obviously did not have to attend to be questioned on oath because of the plea of “no contest”.

36. Mr Galbraith KC contended that it is fundamental that any penalty must be proportionate to the circumstances and that any disqualification as sought would be grossly disproportionate. He says that the RIB submissions ignore the fact that Mr Walker is employed as the Principal Trainer for the Te Akau organisation and that any disqualification of Mr Walker would have a serious impact upon his employer and hundreds of Owners. He emphasised Mr Walker’s good record over many years and how esteemed are his employers and him. He criticises any application of the NZTR “Guidelines” said to be relied upon by the RIB as “problematic” where “presentation”, “administration” and breach of the One Clear Day Rule all depend on different and unique factual situations, and do not provide any proper answer to the question of what should be a starting point in what actual circumstances. He argued that the present Guidelines not be given any weight.

37. Counsel referred to some Australian cases where there had been staff human error in well run Stables lead from breaches of Rules led to fines from $4,000 to $8,000.

38. He contended that this case had to be determined on its own facts and circumstances and the extreme consequences to other persons. He said that:

• Mr Walker, when first interviewed, had no direct memory of an event 8½ months earlier.
• That the non-recording of the treatment in the Vet Book was consistent with the statements of Mr Ellis and others that the instructions to record everything were meticulous, so Mr Walker had an “appropriate” basis for later questions whether in fact that had in fact been given, so that his response was not one of “aggravation”.
• There was no intention of Mr Walker to breach any Rule and because of his understanding of the history of the Rule, and Singapore process, he gave “no consideration to the Rule”.
• The consequence of disqualification of Mr Walker would “significantly damage Te Akau to its hundreds of Owners” and a “modest fine” only is necessary in the unusual circumstances and “absence of any intentional knowledge that the Rule was in question”.

Outcome
39. First, “BELLE OF THE BALL” must be disqualified from the race in which she won as Rule 804(8) requires this to follow as a mandatory outcome. Mr Galbraith KC accepts this.  It must follow upon an acceptance of the fact that there was treatment and what he submits was “the inadvertent breach” of the Rule – that is, there was in fact treatment given within the “One Day Rule” period which required the horse to be scratched.

40. Suggestions, or opinions, contained in some statements, provided by the Respondent for sentencing purposes which seem to advance on the opinion that the treatment may not have been given, are rejected and are of no avail to the Respondent because those conjectures cannot stand scrutiny with the contemporaneous written record, unchallenged, of the email exchanges, and the non-contest of the charge, and the acceptance that disqualification of the horse must follow. That is because it actually was treated then started in the race.

41. A later statement of the Riccarton Foreman made on 11 July 2023 when interviewed by an Investigator in Australia, (in the presence of a New South Wales Steward) is clear, and honestly made.  He said:

“• Both Marbocyl and Vitamin C would’ve been injected into the veins of both horses…. I would have done that”.
• The One Clear Day Rule where a horse, let’s say nominated for Saturday, is to have nothing administered orally/intravenously Friday”.
• I just thought usually Te Akau were pretty cautious on running horses on high SAA that they wouldn’t run. Obviously, you never know, the SAA’s could keep going up and the bloods could worsen so I presumed we wouldn’t be running them”.
• “[the Stablehand] was obviously aware that you had administered the drug as directed”.
• Question: “One minute later at 3.49 is a message from Mark Walker saying ‘Thanks we scratch BONNIE, run KOKO.
[Matamata Vet] said thanks.
[Answers]: “Mark’s probably gone to [Matamata Vet] showed them their temperatures or waste food from that day and obviously what has happened the day before and [the Vet] made that decision.
• “I had obviously given it personally, but it was their decision at the end of the day. I was obviously just instructed to do it by them and they made the final decision. …… I probably should [of challenged them]. It’s not really how I am. They make the decision. They both [Matamata Vet], Mark, [and Assistant to Mark]. They knew why we had done it as well…..”

42. The Adjudicative Committee has recorded at some length the above which depicts some of the evidence that the Foreman would have given, as he had been summonsed, if the defended hearing had proceeded. The opinions of two others in statements now produced that treatment may not have been given, are fatuous. Of course, the horses’ Vet Books do not record the treatment which enables some to argue none was given, but there may be many and other reasons as to why the Riccarton Staff may have omitted to do so. The fact remains that the treatment was given within the One Clear Day Rule and Mr Walker and his Matamata Assistants were advised of that. It required the horse to be scratched.

43. Mr Galbraith KC submitted that this arose because of a misunderstanding by Mr Walker of how the Rule was applied, based upon his past experience, and he simply did not turn his mind to consider an obligation to scratch. He said that any lapse was through inadvertence. But as a widely experienced successful Senior Trainer, it was incumbent on him to know the Rule and its effects.

44. The Adjudicative Committee agrees with Mr Galbraith KC that use by the Adjudicative Committee of the “NZTR Penalty Guide” is inappropriate in this case.  It suggests “starting points” for first offences:

(a) “Administration Offences” – 18 months disqualification.
(b) “Presentation Offences” – $8,000 fine.

45. The Informant submits that the Guide does not differentiate between administration on Raceday and administration in breach of the One Clear Day Rule. The Adjudicative Committee does not accept that the Guide (and it is no more than that) is to be used for the breach of the One Clear Day Rule. That is because:

46. (a) “Presentation” and “administration” offences relate to horses being given, or presented with,
Prohibited Substances. The One Clear Day Rule applies to any substance other than a Permitted One; and not “Prohibited” Substance.

(b) The breach of this Rule does not occur simply by the giving of the treatment, but the later racing of the horse within the prohibited period.

47. To equate a starting point guide of 18 months disqualification for administration of a Prohibited Substance with a breach of the One Clear Day Rule is not appropriate. The Guide does not assist the Adjudicative Committee.  It fixes a starting and final point based upon its assessment of all the relevant circumstances including that there has to be both administration, (but not of a Prohibited Substance) and presentation to race. As the Informant has submitted, there are no similar New Zealand cases. The Australian cases are of limited assistance.

48. The Adjudicative Committee accepts a submission of the Informant that a breach of the One Clear Day Rule where a horse races after being administered a non “Prohibited” Substance is very difficult to detect because such treatments are not subject to tests. A condign and stern response must be taken to such a breach in order to deter other Licensees from engaging in similar conduct.

49. Given the facts of this case and the circumstances of Mr Walker, a period of disqualification for a first offence would be unduly harsh. A fine at a level of $9,000 (before considering any aggravating and mitigating factors), the Adjudicative Committee regards is warranted. This reflects the dual administration (or causing it) and later racing of the horse within the prohibited period.

50. There are no aggravating features so as to require an uplift. The later breach of the ‘Prohibited Substance” Presentation Rule (“TOKYO TYCOON” case) came well after this event so it does not require any uplift. The contesting of the charge for many months, in order to engage in investigation to see if there was to be a valid defence, is not aggravating. Otherwise, any Respondent might be “in peril” by choosing to defend. A failed defence is simply an absence of a mitigating factor for an earlier guilty plea and acceptance of a charge, but is not aggravation for sentencing purposes.

51. As to mitigation. Mr Walker cannot call in aid an early guilty plea as it was virtually only at the very last days that he advised he “did not contest” the charge. Some expenses were of course avoided which is reflected in the lower Costs Order, than otherwise would follow, being made. The long exemplary record of, and service to the Industry, by Mr Walker is recognised and taken into account. His lapse of over 20 years ago is put aside. But the present case involved, even if by misunderstanding, a serious breach of the Rule and Mr Walker’s obligation as a Licensed Trainer. The Adjudicative Committee allows him a discount of 20% ($1,800) from its starting point. So, the fine to be paid by Mr Walker is fixed at $7,200. He should clearly understand that any future similar breaches of the Rules which bind him, may attract greater penalties.

Costs
52. The RIB Informant is entitled to the benefit of an order for costs to be paid by Mr Walker. They are fixed at $2,000, representing 60% of actually incurred expenses.

53. The Adjudicative Committee has incurred expenses and Mr Walker is ordered to pay to it $4,000, being 60% of those expenses.

Concluding Remarks
54. Given the comprehensive written submissions made to the Adjudicative Committee by Mr Walker’s employer, the Adjudicative Committee thinks that it is necessary to record for the benefit of all involved in the Racing Industry the following.

55. Sanctions are imposed upon Licensees (Trainers, Jockeys and others bound by the Rules of Racing) when those Licensees breach the Rules. No special treatment should be afforded to Owners, Syndicators (large and small) whose Licensed Trainer or Jockey (for example) require to be disqualified or suspended. Naturally where a Trainer is disqualified, there will always be an impact on his/her Owner(s) but that will inevitably be the case whether the Trainer has a few or many Owners. That removal or suspension of a Licence to train or ride may have an impact (and it occurs in every case where such an outcome arises). But it is because of the breach of the Licensee’s obligations under the Rules.  Owners, prominent or otherwise, large in Syndicate numbers, or “small time”, may be hurt to lose their preferred Licensee, but that will always be the case where any professional – in racing or otherwise – has his/her Licence privilege removed – so as to not be able to serve the client.

56. Those comments are made because, although Mr Walker’s employer has said “I am not for one moment suggesting that Te Akau should be favoured in relation to any penalty …” he goes on to contend that recognition had to be given for Te Akau and “some hundreds or so Owners of horses which Mark is responsible”.

57. The Adjudicative Committee has given some weight to that contention, but repeats that all involved in the Industry understand that Syndicators, large or small, prominent or otherwise, with one or several Trainers, cannot expect to be treated any differently from others. It is the Licensee (Trainer, Rider etc) who is sanctioned for a breach of the Rules and where stern sanctions are required, it ill befits an Owner to avoid the imposition of a proper penalty solely because of his/her/its own interests.

58. Summary of Orders

1. “BELLE OF THE BALL” is disqualified from Race 10 of the North Canterbury Racing Club Meeting at Riccarton on 1 October 2022. The placings of the horses that were placed 2nd to 6th by the Judge, are revised accordingly.  The stake money won by “BELLE OF THE BALL” is to be redistributed to the connections of those respective horses.

2. Mr Walker is fined $7,200 for his breach of the One Clear Day Rule 804(5).

3. Mr Walker is ordered to pay $2,000 towards the costs of the Informant and $4,000 towards the cost of the Adjudicative Committee.

ADDENDUM:

With regards to Paragraph 28, it is not intended that both cases (Wigg/Jones) involved both “via oral drench x 3” and “intravenous injecting” but rather, those cases involved separate administrations (Wigg – “via oral drench x 3” and Jones – “intravenous injecting”).