Non Raceday Inquiry – Reserved Written Decision dated 27 June 2022 – Cameron Jones

[1] The Informant, the RIB, has laid Information A15813 with respect to the Respondent, Mr Cameron Jones, alleging a breach of r 1004C(1)(b) of the Rules of Harness Racing.

[2] This Information alleges: “On 10 December 2021 at 123 Woodend Beach Road, Woodend Beach, the Respondent did administer to JOHNNY NEVITS, which was entered in Race 2 at the New Zealand Metropolitan Trotting Club meeting at Addington Raceway that evening, a substance by way of injection, in breach of r 1004C(1)(b) and subject to the penalties pursuant to r 1004D.”

[3] Rule 1004C(1) states: “No person shall administer to a horse entered in a race in the period one clear day before racing (except under the direction or supervision of club veterinarian, Racing Investigator, or Stipendiary Steward) any substance by:
(b) injection, hypodermic needle, or oral syringe.

[4] Subsection (2) provides: “A breach of sub-rule (1) is committed regardless of the nature of the substance administered.”

[5] Rule 1004D(1) states: “A person who commits a breach of r 1004C shall be liable to:
(a) a fine not exceeding $20,000; and/or
(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years

[6] The matter was heard at Christchurch on 21 June last. The Respondent admitted the breach and accepted the Summary of Facts.

Summary of Facts

Background

1 The Respondent, Cameron Thomas Jones, is licensed under the Rules of Harness Racing New Zealand. He currently holds a Public Trainers Licence and a Junior Drivers Licence.

Breach of Rules

2 Information A15813 relates to a breach of r 1004C(1) – Administration in breach of the One Clear Day Rule.

3 On Friday 10 December RIB Investigators conducted an inspection at the stables of Cameron Jones at Woodend Beach. This being the afternoon of a race meeting held at Addington Raceway by the NZMTC.

4 Mr Jones had one runner engaged that evening: JOHNNY NEVITS; Race 2, 5.42pm.

5 Investigators observed Mr Jones collect his horse from a yard, tether it in his tie-ups and prepare it for transportation to the races. Also present was HRNZ Licensed Trainer Andrew Fitzgerald who did the same with his horse EYECON entered in Race 4.

6 At approximately 3.05pm Investigators observed Mr Jones lead his horse onto a horse float while Mr Fitzgerald waited on the ramp to load his horse. Seconds later Mr Fitzgerald observed Mr Jones holding an empty hypodermic syringe next to JOHNNY NEVITS. This was approximately two and a half hours before the horse was due to race.

7 Mr Fitzgerald loaded his horse, secured the float, and then drove his vehicle towards the gate which Mr Jones had walked to and opened. Mr Jones was observed by both Investigators and Mr Fitzgerald to open the lid of a green wheelie bin next to the gate and place something in it. Both Mr Fitzgerald and Mr Jones then left the property and drove the float to Addington Raceway.

8 Minutes later Investigators inspected the wheelie bin and located a used 20ml hypodermic syringe on the top of other rubbish. The syringe was taken as an exhibit for analysis.

9 Upon the float arriving at Addington, Investigators immediately interviewed both Mr Jones and Mr Fitzgerald independently.

10 Mr Jones denied injecting JOHNNY NEVITS or having possession of a syringe. He stated that he had placed a small vaping cannister in the wheelie bin.

11 Mr Fitzgerald stated that he saw Mr Jones with the empty syringe next to his horse but did not see him inject it and stated that he observed Mr Jones put something in the wheelie bin after he opened the gate.

12 JOHNNY NEVITS was inspected by the oncourse RIB vet at Addington who observed a 10mm soft swelling on the left jugular vein with a focal puncture in its centre, consistent with an intravenous injection site.

13 Based on the evidence presented, JOHNNY NEVITS was scratched from its race by Stewards pursuant to r 213(1)(c).

14 Urine and blood samples were obtained from both JOHNNY NEVITS and EYECON which were analysed and found to contain no prohibited substances.

15 Analysis of the syringe by NZRLS failed to identify any prohibited substances.

16 The evidence does not support Mr Jones’ version of events and no vaping cannister was located in the wheelie bin.

Circumstances relating to Mr Jones

17 Mr Jones has been involved in the Harness Industry for several years and has held a Trainers Licence for one year. He does not have any previous breaches of the “One Clear Day” Rule.

Informant’s Penalty Submissions

[7] The Informant made both written and oral penalty submissions, which we summarise.

[8] The Informant submitted that the relevant purposes and considerations were helpfully stated in the Appeals Tribunal’s decision in RIU v L (2019) at [25] and [28]:

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…
A common thread in cases involving serious misconduct is for the regulatory tribunal generally to focus on the interests and reputation of the profession as being more important than the fortunes of the individual offending member…The Tribunal must endeavour to reach a proportionate balance between:
• the public interest
• the interests of the offending member
• the interests of the professional body as a whole
• the seriousness of the offending
• any aggravating and mitigating factors.

[9] More recently, in RIU v Kerr (2021), the JCA observed:

[T]he need to deter others who might choose to deceive owners or others in the misguided view that they are entitled to operate in similar ways is crucial. The confidence of owners and others in the absolute integrity of Trainers in whom total trust is vested, is vital. The Sport cannot endure if owners cannot trust Trainers…. If there should be any Trainers or others who might breach these Rules, the general deterrence following from this sanction may prevent similar abuse and deceit of, helpless owners. It is the general deterrence principle to which we give special weight in the sentencing balancing exercise so that any Trainer who might tend to forget to whom their duty lies, are aware of possible sanctions they might face if they transgress in similar ways to their owners’ detriment.

[10] The Informant submitted that these comments from Kerr should guide this Adjudicative Committee’s approach to determining penalty in this case. It was a serious administration offence, the only purpose of which must have been to obtain an advantage in the upcoming race.

[11] The Penalty Guide suggests a starting point of 18 months’ disqualification for a first administration offence, then three years’ and five years’ disqualification for second and third offences, respectively. This was a guide only, and more recent decisions indicated that in particularly serious cases, significantly higher penalties might be adopted.

[12] In this regard, the Informant referred to RIB v Wigg (2022), RIU v McGrath (2020) and RIU v Alford (2021) as being comparable cases.

[13] In contending for a penalty of not less than two years’ disqualification, the Informant argued the Respondent’s conduct was more serious than that in Wigg where a starting point of 18 months’ disqualification was adopted for a first administration offence. This case involved the administration of a substance using an oral drench at the prompting of another person. The prompting to administer the substance did not in any way excuse the conduct and, as the Adjudicative Committee in Wigg observed, her actions fell woefully short of the behaviour required of a Licensed Trainer. However, offending which occurs entirely of the offender’s own volition, as in the present case, was comparatively more serious.

[14] The Informant also submitted that injection by hypodermic needle was more serious than administration by oral drench. Injecting was noted to permit the substance to be transferred directly into the bloodstream rather than requiring gradual absorption through the stomach lining, increasing the risk of animal welfare concerns. With respect to an oral drench, the horse has some control as to whether to accept it. For example, in Wigg the horse had resisted the drench and there was a lot of the paste on the ground around the horse. A horse could not resist a substance which was being given by way of a hypodermic needle.

[15] Notwithstanding the absence of a detected prohibited substance, the Adjudicative Committee was invited to consider that Mr Jones’ offending sat closer to the penalties in McGrath and Alford where prohibited substances were administered on raceday.

[16] The Informant acknowledged that the Respondent’s offending was less serious than that in McGrath and Alford, given the absence of a prohibited substance being detected and the absence of evidence of serious animal welfare concerns. However, the principles underpinning penalty in respect of administering offending were said to remain the same.

[17] Analysis had been unable to determine the nature of the substance injected into JOHNNY NEVITS as there was only a residual, miniscule amount available for analysis. However, the Informant contended that the only viable reason for administering a substance to a horse by hypodermic syringe, on raceday and shortly before a race, was to obtain some form of benefit.

[18] The fact that the substance administered was not determined to be a prohibited substance was reflected in the Information, which involves administration in breach of the One Clear Day Rule rather than administration of a prohibited substance. However, in administering the substance Mr Jones’ intention must have been for the substance to be performance enhancing. No other explanation had been proffered. This also made Mr Jones’ case more serious than Wigg, as in that case the Adjudicative Committee accepted the possibility that Ms Wigg did not believe the mixture involved was performance enhancing, finding however, that it was clearly her intention to provide some benefit to the horses for animal health. A similar explanation had not been advanced by Mr Jones in the present case.

[19] The Informant considered that the Respondent’s offending was further aggravated by the deceptive conduct he engaged in once his actions had been detected. This showed that he was clearly aware that his conduct was in breach of the Rules of Harness Racing. In his initial interview with an RIB Investigator, he maintained that he had not injected JOHNNY NEVITS, and challenged the RIB to prove that he had. When confronted with the fact that he had been seen throwing something in the bin and a syringe had been found sitting at the top of the bin, Mr Jones claimed that he had thrown a vape pod into the bin. After Mr Jones’ associate was interviewed and stated that he saw Mr Jones holding a hypodermic syringe, Mr Jones asserted that this associate was either lying, mistaken or had been pressured into making an allegation by the RIB. This was false as Mr Jones had injected JOHNNY NEVITS with the hypodermic syringe.

[20] The Informant emphasised that Mr Jones’ admission of the charge did not come at the earliest opportunity, although it was acknowledged that this was delayed in part while Counsel awaited the decision of the Appeals Tribunal in Wigg, a delay which should not be held against him. Mr Jones’ denials when first interviewed about this matter were said to be also a factor when considering the appropriate discount for the admission of the charge.

[21] The Informant concluded their written penalty submission by stating that in assessing the appropriate starting point for Mr Jones, the Adjudicative Committee should consider the effects of his offending on both the owners of the horses concerned and the wider racing community as a whole, and thus the need for both specific and general deterrence in regard to this type of offending.

[22] At the request of the Adjudicative Committee, the Informant produced the record of JOHNNY NEVITS which showed two starts for a second and a third. The horse did not race after the day in question and Mr Jones explained this was due to a tendon injury. JOHNNY NEVITS was owned by the Respondent’s partner, a family friend, and another Licensed Trainer, and had now been rehomed.

Respondent’s Penalty Submissions

[23] Mr Jones made oral submissions. He commenced by apologising to the Adjudicative Committee. He said he wanted “to come clean”. He had lied when interviewed by the Investigators and acknowledged it had taken some time for the truth to come out. He said he had panicked as he knew he was going to lose his licence. That was another mistake he had made.

[24] The Respondent said the injection was intramuscular rather than intravenous. The substance was Flexidine, (now called Depodine) which he described as iodised peanut oil. It was an organic substance. He referenced the substance on his cell-phone. (We note it is described on the website as a “long-acting injection for treatment and prevention of primary and induced iodine deficiency in sheep and cattle”.)

[25] Mr Jones stated the injection was due to be given on the preceding Monday, but he had not been spending time at the stable due to his partner giving birth to their first child. He only discovered when he returned from the hospital on the Friday that the injection had not been given and it was then that he injected the horse. He said the substance was not performance enhancing but was intended to put the horse in a good head space so it could run up to its ability. He explained JOHNNY NEVITS was a nervous horse and would be a ball of sweat before a race and was always pulling in trackwork.

[26] Mr Jones said the substance was used to treat an iodine deficiency and had no withholding period. JOHNNY NEVITS had been on it for two months and was receiving it once a week. The substance seemed to work. He acknowledged he had not told Mr Irving the nature of the substance. This hearing was the first time he had identified it. Flexidine was in a 500 ml bottle and was used with respect to other horses in the stable as well. He had not asked the vet for advice with respect to JOHNNY NEVITS, but the substance was in the stable on vet’s advice and, by trial and error, he had worked out that it was suitable for the horse.

[27] Mr Jones said he was aware of the One-day Rule and had no excuse other than it was a poor decision due to his family commitments and he accepted he was “about to pay the price”. He emphasised he was “not trying to get an edge”.

[28] When questioned concerning his stable, he said he had been winding down the past month and only had one horse in his care, which he would sell for the owners. He said that while he lived on David Butt’s property, he had a separate entrance and disqualification would not cause an issue in this regard. (Mr Irving confirmed this.)

[29] Mr Jones presented glowing character references from two well-respected Licensed Trainers and stated a third reference was available. He said he had driven for four years in Australia and for a similar period in New Zealand. He had had his Trainer’s licence for about 18 months and had not driven in a race for the past two seasons. He explained he had worked as stable foreman for Bob Butt in the mornings for the past four or five years and would work his own horses in the afternoon. He trained out of David Butt’s property and usually had about six to eight horses in his stable.

[30] Mr Jones said he had pleaded guilty once he had taken legal advice. He asked that the Adjudicative Committee consider a 12-month disqualification. He had worked in the Harness Industry all his adult life and was the sole earner for his young family. No other employment was available to him at the present time. In a further brief written communication he added that he would like, if possible, to be able to shoe horses.

[31] When questioned by the Adjudicative Committee, he acknowledged he knew why Mr Alford had been disqualified and that the same horse was involved on this occasion. He had taken over JOHNNY NEVITS after Mr Alford’s disqualification. He agreed he knew he was taking a great risk and was doing wrong.

Discussion

[32] We first analyse the three administration cases to which the Informant has made reference.

[33] In Wigg, Ms Wigg admitted three charges of administration in breach of the One Clear Day Rule. Ms Wigg had administered a substance comprised of turmeric (curcumin) and black pepper (piperine) to three horses by way of oral drench on the afternoon of raceday. The horses were all swabbed and no prohibited substances were detected. Ms Wigg’s explanation was that the substance was provided to the horses to improve gut health.

[34] The Adjudicative Committee adopted a starting point of 18 months’ disqualification for the initial administration offence and uplifted this by five months to account for the other two breaches. This was reduced by four months for Ms Wigg’s late admission of the charges and her personal circumstances, resulting in 19 months’ disqualification. Ms Wigg’s appealed this penalty. The Appeals Tribunal dismissed her appeal, upholding the penalty imposed.

[35] Mr McGrath admitted three charges: attempting to administer a prohibited substance; refusing to make a statement; and obstructing a Racing Investigator. Mr McGrath attempted to administer a horse with a prohibited substance by way of nasal gastric tube. He then refused to answer a Racing Investigator when questioned regarding tubing equipment in his possession, and ultimately obstructed the Investigator from seizing the equipment. The Committee concluded “the most likely substance which was to be administered via a nasal gastric tube was an alkalising agent”. The starting point in McGrath was 10 years’ disqualification, which included a small uplift for his previous breaches of the Rules. After a discount for personal mitigating factors, penalty was eight years’ disqualification.

[36] Mr Alford admitted two charges of administering a prohibited substance and one charge of attempting to administer a prohibited substance. This offending involved the raceday administration of Formalin to two horses via injection from a syringe. The third horse was not injected as RIU Investigators intervened before that could occur. The Tribunal viewed the case as broadly similar in respect of the seriousness to McGrath and adopted a global starting point of nine years’ disqualification. The penalty in Alford was seven years’ disqualification after admission of guilt, remorse and absence of previous breaches were taken into account.

[37] Mr Jones has administered a substance by way of a hypodermic needle two and a half hours before the horse JOHNNY NEVITS was due to race. An insufficient quantity of the substance was present on the syringe for analysis. Mr Jones’ explanation is that JOHNNY NEVITS is a nervy horse, and the substance was Flexidine, which he regularly administered to the horse intramuscularly but had omitted to do so due to his being absent from the stable earlier in the week because of his personal circumstances. This explanation was proffered for the first time to this Adjudicative Committee. Mr Jones had never mentioned this fact when interviewed by the Investigators, which could be seen to raise doubt as to its authenticity. There is no obvious reason not to identify the substance once Mr Jones became aware that he had been witnessed administering something to the horse. Rather, his response was to lie and to state a vaping cannister had been deposited in the bin rather than a syringe.

[38] Whatever the nature of the substance, it was not prohibited, unlike the substance in both McGrath and Alford. For this reason, we obtain greater guidance from Wigg. It is evident that Mr Jones’ intention, like that of Ms Wigg, was to administer a substance that would be of benefit to the horse, and in this instance, to enable the horse to settle during its race, and give of its best. Unlike Mr Jones, Ms Wigg confessed her actions when confronted by the Racing Investigators on the day. We add also that the Informant has stated there is no evidence of any betting anomalies with respect to JOHNNY NEVITS.

[39] Certainly, no discount is available for co-operation with the Racing Investigators. Mr Jones lied. And this does make Mr Jones’ expression of remorse at the penalty hearing sound a little hollow.

[40] Mr Jones has been involved in the Harness Industry for several years and has held a Trainer’s Licence since 2021. He does not have any previous breaches of the “One Clear Day” Rule. He has tabled excellent character references.

[41] The Administration Rules are fundamental to the integrity of the Racing Industry. They are intended to prevent Trainers from obtaining an unfair advantage over other horses through the administration of substances that may in some way improve their horse’s performance, whether prohibited or not. Animal welfare concerns are raised whatever the substance, especially when administration is by syringe. The distinction drawn by the Informant between oral administration and administration by injection is not without foundation. The impact of the Respondent’s actions upon both the connections of the horse and the integrity of the Harness Industry itself, points to the need for deterrence, both general and specific. Absent participant confidence, the Industry will not thrive.

[42] The gravity of the breach necessitates that Mr Jones be removed from any involvement in the Harness Industry for a period of time. A mere suspension of his Public Trainer’s licence is not an adequate penalty, nor is a fine. The starting point is that for a first breach, as stated in the Penalty Guide, of 18 months’ disqualification.

[43] Taking into account the circumstances of the breach — that the substance was administered by syringe; this was only two and half hours before the horse was due to race; and the clear warning that the Respondent had received with respect to the penalty imposed upon Mr Alford for a breach of the very same Rule with respect to the very same horse — we believe an increase to the starting point to two years’ disqualification is appropriate. Mr Jones’ intention was plainly to flout the Rules of which he was well aware. His good record (although we note this is inherent in the starting point) and character, difficult financial circumstances, belated remorse, and his admission of the breach at a teleconference on 29 April 2022 upon his eventual obtaining of legal advice and in the context of there being clear evidence of his actions, warrant a three-month deduction. We also take into account that the hearing of this matter was deferred until the Appeal decision in Wigg was delivered. This delay is not attributable to Mr Jones.

[44] Mr Jones is disqualified for 21 months, commencing Thursday 30 June 2022 up to and including 29 March 2024.

Costs

[45] The Informant’s costs were $3380, which comprised legal fees, including file review and advice, communication with Defence Counsel, attendance at teleconferences and preparation of penalty submissions.

[46] Costs must be just and reasonable and do not seek to indemnify the successful party. We order costs of $2000 in favour of the Informant and, as there have been hearing costs, $1000 by way of Adjudicative costs to the RIB.