Non Raceday Inquiry (Part 1) – Written Decision dated 17 May 2023 – TOKYO TYCOON

Introduction

[1] The Racing Integrity Board (RIB) filed Information A17973 which relates to a Prohibited Substance charge against Licensed Class A Trainer, Mr Mark Walker (the “Respondent”).  This charge arises from TOKYO TYCOON’S first placing in Race 5, the Group 1 Sistema Stakes at the Auckland Thoroughbred Racing Club meeting at Pukekohe Park. The Respondent is the Trainer of TOKYO TYCOON.

[2] During a teleconference between the parties on 16 May 2023, the Respondent admitted the charge.  The penalty hearing in relation to the charge will be heard in due course and a written penalty decision will follow.

[3] In the interim, the RIB has submitted a summary of the facts concerning this matter and have sought the disqualification of TOKYO TYCOON from its first placing in the said race.  This decision deals solely with the disqualification.

[4] Accordingly, after consideration of the facts and pursuant to Rule 903(b), TOKYO TYCOON is disqualified and the official placing in the Sistema Stakes are to be amended in accordance with this decision.

The Relevant Rules

[5] Rules 804(1) and 804(2) provides that:

(1) A horse which has been brought to a Racecourse or similar racing facility and which is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance shall be, in addition to any other penalty which may be imposed, disqualified for any race or trial to which the Third Appendix hereto applies in which it has started on that day.

(2) 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.

[6] Rule 903 provides that:

Nothing in these Rules shall prevent:

(a) a Stipendiary Steward or Investigator at any time after a Race filing an Information that a horse should be disqualified on account of or in connection with a Prohibited Substance….

(b) an Adjudicative Committee from disqualifying such horse if the Information is proved  and making such resultant orders as it considers required, and as are permitted by these Rules (including orders disqualifying the horse and ordering that any money, prize or trophy already handed over be refunded), but such disqualification or order, if ordered or made after the Official Result of Placings has been declared, shall not in any way affect that Official Result of Placings.

The Facts

The key salient facts are summarised as follows:

[7] The Respondent in this matter, Mr Mark Walker, is the Chief Trainer at Te Akau Racing Stables in Matamata. Te Akau Racing currently has one hundred and eighty-one thoroughbreds registered as ‘in training’ with NZTR.

Circumstances

[8] On 11 March 2023, TOKYO TYCOON won Race 5, the Group 1 Sistema Stakes at the Auckland Thoroughbred Racing Club meeting at Pukekohe Park. The gross stake money for 1st place was $184,000.

[9] TOKYO TYCOON is a 2-year-old gelding trained by Mark Walker out of Te Akau Racing. He is owned in partnership by the Meadowbank Masters Racing and Te Akau Satono Samurai Racing Partnerships.

[10] TOKYO TYCOON was post-race swabbed on 11 March 2023 at 15:35 hours.

[11] On 24 March 2023, New Zealand Racing Laboratory Services (NZRLS) issued a Certificate of Analysis detailing that the sample obtained from TOKYO TYCOON was positive to the Prohibited Substance Meloxicam.

[12] Meloxicam is defined as a Prohibited Substance under the Prohibited Substance Regulations of the NZTR Rules of Racing falling under clause 1.1.6 and in the category of substance – Part A (1.2.21) anti-inflammatory agents within the meaning of the Rules.

[13] Meloxicam is a nonsteroidal anti-inflammatory drug for the alleviation of inflammation and relief of pain in both acute and chronic musculoskeletal conditions in horses. Meloxicam is permitted in race day samples as a therapeutic substance to a regulatory limit of mass concentration of 10 micrograms per litre in urine. The NZRLS has reported that the level in this sample is reported as exceeding 20 micrograms per litre (upper level of calibration used). Its presence therefore above the regulatory limit of 10 micrograms in a race-day sample is, prima facie, a breach of the Rules.

[14] Meloxicam is listed on the NZEVA Period of Detection List with a listed possible withholding time of 4.2 days and a detection time of 3 days.

[15] On 27 March 2023, Investigators from the RIB undertook enquiries at Te Akau Racing Stables and the subsequent interview of the Respondent along with five other Te Akau Racing employees and their independent veterinary.

[16] These enquiries established that in the week prior to the G1 Sistema Stakes on 11 March 2023, TOKYO TYCOON was boxed in Box 3 of the Colt Barn.

[17] Copies of both the medication record book and whiteboard outlining individualised horse treatments for the horses boxed in the Colt Barn were obtained. TOKYO TYCOON is referred to in these records by his stable name – ‘Katsu’.

[18] A review of these records notes that ‘Katsu’ was due to be administered Meloxicam on the 4th, 6th, and 7th March prior to the raceday on 11 March 2023.

[19] Records identify that RARE COMPANY, stable name ‘Powell’ was boxed in Box 2 being directly next to Box 3 where ‘Katsu’ was boxed.

[20] The medication record book highlights that ‘Powell’ was due to be scoped and administered ‘melox’ (Meloxicam abbreviated) on the 10 March 2023.

[21] Both Colt Barn Forepersons were interviewed and confirmed during interview that they are the only two Te Akau employees apart from the independent vet who would be responsible for administering Meloxicam to ‘Katsu’.

[22] Meloxicam administered dosage between the two Forepersons appears to differ slightly with one stating they administer 10ml and the other – “A syringe full so they’re 13/14ml.”  Administration is undertaken by way of oral paste syringe to the back of the horse’s tongue.

[23] Te Akau Racing has both external and internal CCTV Security Cameras operating in the Colt Barn, which is recorded to a hard drive. RIB subsequently requested disclosure of the footage for the week leading up to race day on 11 March 2023.

[24] On 28 March 2023 the Respondent advised the RIB that he had reviewed the internal CCTV footage.  He advised that the footage identifies one of the Colt Barn Forepersons entering ‘Katsu’s’ box 3 on 10 March 2023 at 08:42 hours and appears to administer a syringe, which he believes to contain Meloxicam.

[25] On 29 March 2023 the RIB attended Te Akau Racing and reviewed the said CCTV footage and obtained an electronic disclosed copy. This footage highlights that both Forepersons are doing their rounds and checking on boxed horses in close proximity to where ‘Katsu’ was boxed.

[26] At 08:39 hours a Foreperson is sighted entering ‘Katsu’s’ box 3. The footage highlights that a syringe had been left on the ground directly adjacent to box 3 prior to 08:35 hours when the disclosed footage commenced.

[27] The footage shows that at 08:42 hours a Foreperson uplifted this syringe from the ground in front of box 3 and administered orally to ‘Katsu’.

[28] In consultation with Te Akau Racing Managers, they believe that the syringe identified in the footage is identical to the veterinary supplied Meloxicam Syringes.

[29] A secondary interview was subsequently undertaken of the Foreperson in question and the CCTV footage was played to them for the purpose of seeking their response and explanation in relation to their actions in the footage. In response to questions, one of the Forepersons stated – “Maybe its FILTA BAC. That’s in the same tube as Meloxicam, it looks the same, but I know he’s got white socks and we were treating his mud fever”. On completion of viewing the oral administration via the horse’s tongue the Foreperson became visibly upset and stated – “I’m really sorry”. The foreperson further admitted to “giving him half a Pro-Dosa and the Meloxicam”.

[30] This ½ Pro-Dosa and Meloxicam being recorded in the medication record book to be administered to ‘Powell’ on 10th March 2023. When questioned further to how this has occurred, the Foreperson stated – “I’ve obviously put it down because I’d gone to see whatever was happening and then I’ve gone back and just assumed and I didn’t look properly.”

[31] It is the RIB’s position that administration has occurred through human error around the mistaken identity of the two horses – ‘Katsu’ and ‘Powell’ that were boxed next to each other. The RIB therefore does not believe that there was any nefarious intent on behalf of the Foreperson or Te Akau Racing to the oral administration of Meloxicam.

[32] Enquiries were undertaken with NZTR Chief Veterinarian Dr Andrew Grierson regarding Meloxicam and its absorption rates. These revealed that Meloxicam is a non-steroidal anti-inflammatory drug (NSAID) patented by Boehringer Ingelheim in 1997. Meloxicam blocks the COX-2 more than it blocks the COX-1 inflammatory response to an injury. Dr Grierson further reiterates that the detection time listed on the NZVA WHT list has Meloxicam as a detection time of 72 hours (3 days). Stating however that 72 hours is definitely not the withholding from racing. The NZVA withholding time for Meloxicam is clearly listed as 1.4 times 72 hours being 100.8 hours or 4.2 days.

[33] The ‘B Sample’ was independently tested by the Hong Kong Jockey Club (HKJC) Racing Laboratory and on analysis the presence of Meloxicam was detected.

[34] Throughout this investigation the RIB has found Mr Walker and his Te Akau employees to have been extremely cooperative.

[35] The Respondent has no previous judicial history involving prohibited substances.  However, the RIB highlights an historic offence in August 2000 brought by the RIU against Mr Walker for falsifying a document (jumping certificate), resulting in a 4-month suspension and $5,000 fine.  This historic information has only come to light post filing of Summary of Facts – as a result, on 24 May 2023, this paragraph has been corrected and updated to reflect this new information.

[36] Pursuant to the Rules, the RIB seeks the disqualification of TOKYO TYCOON from Race 5 at the Auckland Thoroughbred Racing Club meeting at Pukekohe Park on 11 March 2023.

Decision and Reasons

Decision

[37] The Adjudicative Committee makes an order directing that TOKYO TYCOON shall be disqualified from first placing in Race 5, the Group 1 Sistema Stakes at the Auckland Thoroughbred Racing Club meeting at Pukekohe Park.

[38] In addition, the gross stake money for first place, $184,000, is to be withheld (forfeited) and paid in accordance with the amended placings.

Reasons

[39] In reaching its decision, the Adjudicative Committee is required to establish that TOKYO TYCOON was brought to a Racecourse or racing facility and was found by the Adjudicative Committee to have had present in its metabolism, a Prohibited Substance.  The Adjudicative Committee is empowered by virtue of Rule 903(b) to make an order disqualifying such horse if the Information is proved. In this case, Mr Walker admitted the breach and therefore the Information is deemed to be proved.  The presence of the Prohibited Substance in TOKYO TYCOON’S metabolism at the time of the race, is prima facia a breach of the Rule.

[40] Although the breach occurred because of a mistake by one of Mr Walkers employers, he, by virtue of his position, is vicariously liable for the breach and has accepted responsibility.

[41] Neither the presence of Meloxicam nor the disqualification, is contested by the Respondent.

[42] Therefore, in accordance with the relevant Rules, TOKYO TYCOON is disqualified, and placings amended, and stake money paid in accordance with this order.

Costs

[43] Due to this matter having been uncontested and dealt with ‘on the papers’, there is no order for costs.