Non Raceday Inquiry – Written Decision dated 11 August 2023 – Ian Jamieson

The Informant, the Racing Integrity Board (RIB), has laid the following charge:

On the 6 May 2023 at the Ascot Park Raceway Invercargill, Mr Ian Jamieson, the Licensed Trainer of the horse CALL ME SIR, which was presented at the Invercargill Harness Racing Club for the purpose of engaging in Race 5, the Lone Star Bar & Café Mobile Pace, failed to present the said horse free of the Prohibited Substance Arsenic at a level at or below 0.3 mg/L of urine, in that the horse did return a level greater than 0.6 mg/L of urine, being an offence against the provisions of rr 1004A(2) and 1004A(4) and punishable pursuant to r 1004D(1) of the New Zealand Rules of Harness Racing.

Rule 1004A(2) states: “A horse shall be presented for a race free of prohibited substances.”

Rule 1004A(4)  provides: “When a horse is presented to race in contravention of subrule (2) the trainer of the horse commits a breach of these Rules.”

The Prohibited Substance and Practices Regulations states: “4 The following substances are not prohibited when present at or below the following threshold: 4.2 Arsenic at a mass concentration of 0.30 milligrams of total arsenic per litre in urine.”

Rule 1004D(1) states: “A person who commits a breach of r 1004A shall be liable to:

• A fine not exceeding $20,000; and
• To be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.”

A telephone conference was held on 4 August at which Mr Jamieson confirmed that he admitted the charge and that he consented to the matter being determined on the papers.

Prior to this telephone conference, the horse CALL ME SIR was disqualified from the race in question in a Ruling delivered on 21 June last.

Summary of Facts

The agreed Summary of Facts states:

1. The Respondent Ian Desmond Jamieson is a Licensed Harness Trainer and Owner who lives at Winton. He has been involved in training horses since school and has held his Trainer’s licence for 30 years.
2. CALL ME SIR is a 5-year-old bay gelding that until early June 2023 was co-owned and trained by Ian Jamieson at Winton. As at 12 June 2023 the horse had 22 race starts for 1 win and 8 placings, winning a total of $14,920 in race stakes money.
3. CALL ME SIR was correctly entered and presented by Mr Jamieson to race in Race 5, the Lone Star Café and Bar Mobile Pace 2200m at the Invercargill HRC meeting on 6 May 2023 at Ascot Park.
4. The horse won the race, winning $5,500 in stakes money. CALL ME SIR was post-race swabbed and a urine sample was taken. The sample was recorded on RIB Sample Card number 094579. Mr Jamieson was present throughout the swabbing and did not contest the process.
5. On the 7 June 2023 Racing Analytical Services Laboratory (RASL), an accredited laboratory in Victoria, supplied a Certificate of Analysis result which showed that the Urine Sample number 094579 had returned an Arsenic result of greater than 0.60 mg/L of urine.
6. The result is evidence of a breach of the Prohibited Substance Regulations as contained in the New Zealand Rules of Harness Racing which specifies that Arsenic is only permitted when present at a concentration at or below 0.30 mg/L.
7. On 14 June 2023 RIB Investigators visited the training stables of Mr Jamieson. He was advised of the positive swab result and given a copy of RIB Sample Identity Card 094579, along with a copy of the RASL Certificate of Analysis.
8. Mr Jamieson said he was “absolutely shocked” when he received the results and that he could not believe it at first.
9. Mr Jamieson advised Investigators that CALL ME SIR was a chronic wood chewer, which was evidenced by the obvious deterioration of the horse’s box posts and on nearby paddock fencing. Mr Jamieson said he “wasn’t just chewing on it, he was gulping it”. He did not have any idea how it could have happened any other way.
10. Mr Jamieson knew that the tanalised posts contained Arsenic but did not think that it was something which was being tested for. He said it “never crossed my mind that it could happen like that.”
11. Mr Jamieson said he had applied used tractor oil from time to time to try and stop the horse from chewing on the wood. He said that it would be effective as a deterrent for a few days but then the horse would resume chewing again after it dried out.
12. Mr Jamieson had also used Creosote many years ago as a deterrent, which had worked, but he had heard stories from Australia that it contained stuff that could return a positive and had decided it was too risky to continue to use that.
13. Mr Jamieson used no additional supplements or tonics; there had been no injections or other Vet treatments provided to the horse, and he only fed it oats and a common commercial feed mix.
14.  CALL ME SIR was disqualified from its race win and the $5500 stakes money was forfeited.
15. A sample taken from the chewed post of the box in which CALL ME SIR was kept showed that there was Arsenic present in the timber that was at a consistent level for such treated wood.
16. Chromated Copper Arsenate (CCA), a product containing Arsenic is widely used in NZ for its insecticidal properties to treat timber. It is possible that a horse can have a urinary level of Arsenic that exceeds the threshold concentration if it chews and ingests a sufficiently large quantity of CCA treated timber, as appears to have been the case in this matter.
17. The Chief Veterinarian for HRNZ said that Arsenic is not required for any mammalian body system or biochemical pathway to work and does not enhance performance in a racing situation. He said that relatively small amounts of chewed treated wood could raise Arsenic levels in urine beyond 0.30 mg/L.
18. Mr Jamieson is 59 years old and lives by himself at Winton, where he alone handles all day-to-day care of his horses. He has just a yearling and a retired trotter at present, with CALL ME SIR having been sold to Australia a month after its race win.
19. Mr Jamieson has a part-time job as a Racecourse Manager at the Winton Racecourse and is of limited financial means.
20. Mr Jamieson has been fully cooperative to date and readily admitted his guilt at the earliest opportunity.

Decision as to Breach

As Mr Jamieson has admitted the charge, it is found to be proved.

Submissions as to Penalty

The Informant provided written submissions as to penalty. Mr Jamieson responded orally.

Informant’s Submissions

With respect to the Prohibited Substance, the Informant stated that Arsenic is a naturally occurring trace element that is normally present in horses at very low levels as a result of a normal dietary intake and environmental exposure. An excessive amount of Arsenic can have a deleterious effect on the cardiovascular system and therefore is a Prohibited Substance when present in a sample at concentrations above that which would naturally occur through routine nutritional sources.

Arsenic is believed to have no potential benefit to a horse’s performance through elevating levels artificially and is only likely to inhibit performance and cause potential welfare issues where excessive quantities are ingested.

CALL ME SIR, being a chronic wood chewer, had eaten away at wooden posts attached to its box, that had been treated with a CCA compound that contains Arsenic. CCA is used as an insecticide to protect wood from rot.

Arsenic at a level over 0.30 mg/L urine is a Prohibited Substance within the meaning of the Rules and its presence in a race day sample at levels exceeding the threshold is, prima facie, a breach of the Rules.

The RIB submitted that the principles of sentencing relevant to this charge could be summarised as follows:

• Penalties are 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.
• 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 considered.

The Informant observed that there were no previous breaches of this Rule within the HRNZ Rules of Racing. However, there were recent cases in Australia relating to a breach of the Arsenic threshold in horses and greyhounds.

Victorian Racing Tribunal v N Purdon (December 2022)

Trainer Nathan Purdon was fined $2,000 on 7 December 2022, with $1,500 of that suspended for 12 months, after the horse MIRAMANEE tested positive for Arsenic. The horse, which finished 1st, was disqualified. It was noted that the most probable cause for the elevated arsenic levels was from CCA treated posts that the horse had chewed on despite efforts to paint the posts and putting outriggers on them. The level of detected arsenic was 0.54 ml/L, similar to that in this case.

Racing Integrity Board NZ v Watson (April 2023)

On 28 November 2022 Licensed Greyhound NZ Trainer Chloe Watson failed to present the Greyhound TEEING OFF free of any Prohibited Substance, namely Arsenic with a level of 1158 ng/L, being over the permitted threshold of 800 ng/L.

The source of the high Arsenic level in the Greyhound was believed to be CCA treated pine timber flooring that was located within the kennelling area. The flooring had been licked by the dog in question, after being recently restained in order to comply with Greyhound NZ standards following an RIB Audit.

Ms Watson had no prior convictions and once made aware of the situation, immediately moved her dogs to temporary housing and then installed matting to ensure the dogs could not chew or lick the treated timber. Ms Watson was fined $1,000. The Greyhound was disqualified from 3rd place with a stake of $290 forfeited.

Victorian Racing Tribunal v Peacock (June 2023)

Harness Trainer Tony Peacock presented the horse ILLAWONG KELLIE to race. A post-race urine swab sample taken from the horse revealed Arsenic present in excess of the permitted threshold of 0.30 mg/L. The actual level was not reported. Mr Peacock suggested that the horse had chewed on treated pine posts at the stables of a property where the horse had been temporarily sent to after flooding and this may have been the cause of the high Arsenic level.

Mr Peacock, who had two previous offences, and a long history of involvement in the Harness Industry, was fined $2,500 with $2,000 of that suspended for a period of 12 months. The horse was disqualified. Comment was passed at the hearing that: “Trainers in the harness racing industry have been informed on many occasions of the dangers of their horses being stabled or located near any treated wooden fence posts or railings.”

Victorian Racing Tribunal v Bonavia (December 2022)

Mr Bonavia presented the harness horse SWEET SANGRIA to race. A post-race urine result from the horse revealed the presence of Arsenic at a level above 0.30 ml/L. The most probable cause for the elevated levels was from the horse chewing on treated timber posts. Bonavia, who had no prior offences, was fined $2,000, with $1,500 of that suspended for 12 months. The horse was disqualified.

In addition to the above matters, there were five others heard by the Victorian Racing Tribunal in 2022 for Arsenic and in each case, the most probable cause was from treated timber posts. Fines were between $2,000-$3,000 (depending on whether the offender had prior offences), with most of the penalty ($1500-$2000) suspended for a period of 12 months pending no further breaches of a similar nature within that time.

Following a matter in November 2022 (VRT v Duffy) the Tribunal commented that: “It is very disappointing that this is the fifth case this year involving elevated Arsenic levels. It is concerning that Harness Racing Victoria’s notices to the industry about the risks of using treated timber is not getting through”. In October 2018 the VRT issued its 5^th Notice to trainers in respect of Arsenic, advising trainers to take care when using CCA treated timber.

The Informant identified as an aggravating feature, that Mr Jamieson understood that Arsenic at a level over 0.30 mg/L is a Prohibited Substance within the meaning of the Rules. He was aware that his horse was a chronic wood chewer and that there was Arsenic present in the treated posts that the horse was chewing. While he had tried to alleviate the chewing through the application of used tractor oil, this had only been effective for a few days and then the chewing would resume.

There was little doubt that the Arsenic level detected was completely inadvertent; nor was there any potential benefit to have been gained from it. There were no other sources of Arsenic containing substances located at his stables. Along with tractor oil, Mr Jamieson had also tried using Creosote to stop the chewing but had stopped after becoming concerned after hearing about possible Prohibited Substances contained in that product.

Upon learning of the positive result, Mr Jamieson took immediate steps to ensure no more chewing of posts could occur by attaching metal coverings over posts that might be accessible to horses.

On 21 June 2023 the horse CALL ME SIR was disqualified from 1^st in the race in question. As a result of the disqualification, Mr Jamieson forfeited his share of stakes winnings of $5,500 as both Trainer and Owner. He was a 50% Owner of the horse.

Unlike several Australian Racing Authorities, HRNZ has not issued any advisory notices to Trainers in respect of the dangers associated with the stabling of horses around treated timber post or fence railings.

Although it is difficult to confirm the direct cause of the high Arsenic levels, it was the belief of the RIB that the most probable cause of the threshold breach was from the CCA treated timber in the box in which CALL ME SIR was housed, and which he had extensively chewed. As the Trainer, Mr Jamieson has a strict liability to ensure that his registered horses are free from Prohibited Substances at all times.

Mr Jamieson entered an early guilty plea and was fully cooperative and respectful with RIB staff throughout the process. He has no prior charges under the HRNZ Rules of Racing.

As this case was the first of its kind in New Zealand relating to a breach of the Arsenic threshold for horses, the RIB believed it was appropriate to consider the penalties received for similar offending in Greyhounds and/or in Australian situations.

The RIB submitted that the offending in this case was similar to that of RIB v Watson (2023) in that there was a breach of the Arsenic threshold by a Trainer who had no previous convictions and no intention to breach the Rules, and in which Arsenic treated wood was the source of contamination. The Australian cases were all very similar in that the cause of Arsenic was most probably from treated posts.

Mr Meulenbroek highlighted the differences between the circumstances of Watson and the Respondent’s breach. Mr Jamieson was aware that CALL ME SIR was chewing the posts but not that a positive to Arsenic could be the result. Watson had responded to an RIB audit and had upgraded her kennels and the positive was due to the laying of newly treated flooring. She was unaware of the issue and had immediately taken action to cover the flooring.

The matter before the Adjudicative Committee was considered to be at the lower end of the continuum of offending, as was Watson. There was no financial benefit to be obtained from the offending, and there had already been a substantial penalty incurred by Mr Jamieson by way of the horse’s disqualification.

The RIB submitted that the starting point should be a penalty of $1,500 and the Adjudicative Committee should then adjust accordingly depending on a consideration of the aggravating and mitigating circumstances as outlined.

Costs were not sought by the Racing Integrity Board.

Respondent’s Submissions

Mr Jamieson confirmed that CALL ME SIR was constantly chewing at the treated timber posts for most of the horse’s life. He had used tractor oil which would work for a while, but when it dried out CALL ME SIR would be at the posts again. He had been concerned that some ingredient in the oil might return a positive, so had refrained from repeating that. He was aware that there was Arsenic in the tanalised posts but was not aware that the horse could return a positive through chewing the posts.

Mr Jamieson stated that CALL ME SIR had been taken off the grass the day before racing and had been boxed, as was his normal practice. The horse would have chewed the box posts in that time. He said he had thought the oil would “do the trick”. He had now placed a tin covering on the posts. He acknowledged he should have done this earlier.

Mr Meulenbroek confirmed there had been no Industry notification in this country along the lines of those in Australia. He said Arsenic positives were not common as this was not normally a substance that was screened for.

Mr Jamieson stated he had looked at the Australia Harness Site and had found the very recent Decision of Sanders (24 July 2023) where no penalty had been imposed and the forfeiture of the stake was regarded as being adequate to deal with the matter. Mr Sanders was convicted but the Stewards did not impose a penalty on him as they were satisfied to the requisite standard that the detection of Arsenic was consistent with the chronic ingestion of treated wood by the horse. Mr Sanders was cautioned that he must take all reasonable measures in future to prevent any further Prohibited Substance matters arising as a result of the wooden fencing at his registered training establishment.

In considering penalty, Stewards were mindful of the following matters:

• Mr Sander’s first Prohibited Substance offence;
• Mr Sander’s guilty plea;
• Circumstances involved in this matter;
• Class 3 Prohibited Substance;
• The results reported by NMI and ChemCentre;
• The evidence presented by Mr Sanders and Dr Wainscott;
• Mr Sander’s Licence history and other personal subjective facts.

Mr Meulenbroek stated that the Informant had co-operated fully in the investigation and he believed a fine of around $1000 was appropriate in this case. Mr Jamieson responded he believed this submission was “very fair”. He was in the process of upgrading his stables and anything more than this he would have difficulty in paying immediately.

Mr Jamieson confirmed he had lost half the winning stake of $5,500 and the 10% Trainer percentage through CALL ME SIR being disqualified. He submitted that the Adjudicative Committee should take this into consideration when determining penalty.

Decision as to Penalty

The facts are as described above and do not need to be repeated in any detail.

Mr Jamieson was aware CALL ME SIR was a chronic chewer of the fence and box posts and had taken steps to deal with this issue, but these were not effective. CALL ME SIR continued to chew and ultimately the horse tested positive for Arsenic at a level above 0.30 mg/L, the threshold in the Prohibited Substance and Practices Regulations. This is a breach of r 1004A(2).

Mr Jamieson stated that CALL ME SIR had been taken off the grass the day before racing and had been boxed, as was his normal practice. The horse would have chewed the box posts in that time. He said he thought the oil he had previously painted on the posts would “do the trick” and would have deterred the horse from chewing, although he was aware once it dried, the horse recommenced chewing. He has now placed a tin covering on the posts. He agreed he should have done this earlier.

Mr Jamieson was aware that the tanalised posts contained Arsenic. He thus had some knowledge of the possibility that CALL ME SIR would return a positive to that substance should the horse be so tested. Unfortunately, he believed the quantity ingested by the horse, despite his describing CALL ME SIR as a chronic chewer, would not be sufficient to reach the threshold level. This belief proved to be misguided.

Arsenic is not regarded as performance enhancing but its presence at levels above the threshold is regarded as likely to be injurious to the health and welfare of the horse. As the Trainer of CALL ME SIR, the Respondent has a strict liability to ensure that the horse is free from Prohibited Substances at all times.

There are no aggravating personal circumstances. Mitigating factors are that the Respondent has entered an early guilty plea and has been compliant, cooperative, and respectful with all RIB staff throughout the process. He has been involved in the Harness Racing Industry for many years and holds a responsible position at the Winton Racecourse. He has no prior charges under the Rules of HRNZ.

The Adjudicative Committee notes the Informant’s submission that Mr Jamieson’s breach is considered to be at the lower end of a continuum of offending where there was no financial benefit to be obtained from the offending, and that there has already been a substantial penalty incurred by Mr Jamieson by way of the horse’s disqualification.

With respect to that issue, it is recorded that CALL ME SIR was disqualified from Race 5 at the Invercargill Harness Racing Club meeting on 6 May last in a Ruling dated 21 June. This issue need not be addressed further other than to note the disqualification has resulted in the Respondent losing half the winning stake of $5,500 and the 10% Trainer percentage. This financial impost will be factored into penalty.

With reference to the principles of sentencing identified by the Informant and the suggested starting point of a fine of $1500, before mitigating factors are considered, the Adjudicative Committee is satisfied that this figure accurately reflects the seriousness of a breach of the Presentation Rule with respect to the Prohibited Substance, Arsenic, as a consequence of a horse having access to tanalised timber. While not performance enhancing, the presence of Arsenic at a level above the threshold, raises concerns of animal welfare. It also clearly impacts upon the integrity of the Industry.

As Mr Meulenbroek submitted, comparator cases need to be considered. This is where the picture becomes somewhat murky.

The Australian Decisions evidence a fine in effect of $500 and loss of stake, or a caution, as in Sanders, and loss of stake. The only New Zealand case, the Adjudicative Committee understands, where the source of Arsenic was tanalised timber is that of Watson. The penalty there was a fine of $1000, however when regard is had to the effective financial impact, this is $1290, as the stake lost was far less than that in the case before this Adjudicative Committee. Although not identified in the Informant’s submissions, the loss of stake in the Australian cases can be safely concluded to be in excess of $290 and to be nearer or, more likely, in excess of the sum in this case which is $3,300. It should be noted that at [67] in Watson, the Decision records that the RIB would have submitted that “a penalty with a starting point of six-months suspension, with the penalty wholly suspended for a period of 12 months” was appropriate had that been permitted by the Rules in force at the time of the breach. It was not.

The circumstances of the Australian cases are similar in that the horses in question have ingested Arsenic by chewing tanalised posts. Whether this had come to the notice of the Trainers in question is not always stated. In Watson, the flooring was newly laid, and Ms Watson had not anticipated that a dog licking the surface would be ingesting Arsenic. Mr Jamieson, on the other hand, was aware of the chewing of the posts and had attempted to deter CALL ME SIR by means of the application of oil and Creosote, but equally he was aware these endeavours were proving to be unsuccessful. This should have alerted him to the need to take a different approach. It is only after CALL ME SIR returned a positive result that an effective remedy — the use of a tin covering — was adopted.

In these circumstances, the Adjudicative Committee accepts the Informant’s oral submission that Mr Jamieson’s culpability is greater than that in Watson. It is closer to that in the Australian cases, particularly Purdon, who also knew there was an issue with the chewing of tanalised posts. In that case the penalty was a fine of $2,000 with $1,500 suspended, so effectively, $500. The NZ Rules of Harness Racing do not permit a penalty of this nature.

Balancing the circumstances of the breach, the degree of culpability, the penalties imposed in comparable cases both in New Zealand and Australia, including the attitude of the RIB in Watson concerning a wholly suspended suspension, the financial consequences arising from the disqualification of CALL ME SIR, and the personal mitigating factors previously identified, against the need to uphold the integrity of the Harness Industry and animal health and safety concerns, the penalty is a fine in the sum of $800.

While Mr Jamieson is fined $800, the reality of the situation, as the Australian Decisions refer, is that the effective financial impost is in the sum of $4,100.

The Adjudicative Committee repeats the comment at [79] in Watson that the fact that chewing tanalised timber may cause elevated Arsenic levels may not be well known to Industry participants. On that basis, there is an opportunity for HRNZ and the RIB, if it has not already occurred, to mitigate potential further breaches by alerting them to the findings in these two cases.

Costs

The Informant does not seek costs. The matter has been heard on the papers. There is no order for costs.