Non Raceday Inquiry – Written Decision dated 20 March 2025 – Trent Yesberg

(1)  The Informant charged Harness Trainer Mr T J Yesberg with a breach of Rule 1004A(2) and 1004(A)(4) of failing to present the horse “WHOSDREAMINGNOW” to compete on 28 July 2024 in Race 3 of the NZMTC Meeting at Addington free of the Prohibited Substance Cobalt. That substance, if present in urine at a level in excess of 100 ug/L per litre, is deemed to be a Prohibited Substance and in breach of HRNZ Rule 1004A(2).

(2)  The relevant Rules are:

(a)  Rule 1004(A)(2) provides that a horse shall be presented for a race free of Prohibited Substances.
(b)  If a horse is presented to race in contravention of (a), the Trainer of the horse commits a breach of the Rules.

(3)  The essential facts are that on Sunday 28 July 2024, the horse “WHOSDREAMINGNOW” was taken to the Addington Raceway by its Trainer, Mr T J Yesberg, for the purpose of racing in Race 3 of the NZ Metro TC Meeting on that day. The horse won that race, earning a stake of $5,775.

(4)  A post-race urine swab was taken under the HRNZ Rules. A screening Analytical Report on 10 August 2024 detailed the sample having a Cobalt level of 222 micrograms per litre of urine (ug/L). A dated certificate of analysis from the Melbourne Racing Analytical Services Ltd (RASL), returned a reading of the substance Cobalt at a level in excess of 200 ug/L, that being the upper limit of the calibration range used by that laboratory. The permitted level is 100 ug/L in urine.

(5)  Section 4.11 of the HRNZ Prohibited Substance and Practice Regulations provided that Cobalt in urine at a concentration above 100 ug/L per litre is a “Prohibited Substance”. This must be well known to all Harness Racing Trainers. Since the introduction of testing for Cobalt, the average sample level is between 6-7 ug/L and approximately 99.7% of all samples being 46 ug/L or below.

(6)  As was a mandatory requirement under Rule 1004(E)(1), the horse was disqualified from this race by a Ruling of the then Adjudicative Committee on 9 September 2024.

(7)  A Racecourse Investigator had earlier visited Mr Yesberg at his training premises on 14 August 2024. At that time, the confirmatory analysis from the Melbourne Laboratory was awaited. Mr Yesberg was not able to offer any explanation for the elevated level of Cobalt disclosed in the urine screening analysis. He said that he did use substances containing Cobalt or its derivatives on his horses. However, he said that he had given “WHOSDREAMINGNOW” 10mls of “Hemoplex” liquid by injection, 3 times each, in the week before the race on 28 July 2024. He said he had also given the horse an injection of “Hemoplex” plus an injection of 15-20ml of “Catasol” and a “B Boost” oral paste on the Friday evening (it having raced that day) and was to race again on Sunday the 28th.

(8)  A urine sample then taken on 14 August 2024 (the horse having been spelling for 2 weeks since it raced), revealed a level within the normal range.

(9)  Expert Veterinary advice from Dr Grierson, the NZTR Chief Veterinarian was that whilst it may be common practice, there is no medical justification to further supplement a racehorse with additional Cobalt or Vitamin B1. His view was that administration of multiple normal doses of “Hemoplex” injection may raise Cobalt levels above the urine threshold of 100 ug/L.

(10)  Mr Yesberg has been a Licensed Harness Racing Trainer since 2015. He had a previous breach of the Prohibited Substance Rule in 2021. He then had presented 2 horses to run at trials, with one being positive to Phenylbutazone and the other positive to Lasix. So he faced 2 charges.

(11)  It seems that Mr Yesberg (having been served with the proceedings on 10 October 2024) consulted an Australian Vet Dr Derek Major, who is well known for his opinions and views on the presence of Cobalt in racehorses. He provided a letter “to whom it may concern” to Mr Yesberg on 21 October 2024 – it has not been made available until presented by Mr Yesberg on 10 March 2025, as part of his penalty submissions. It seems that the horse had been blood tested by another on 18 September 2025 on Mr Yesberg’s behalf. The Respondent’s then Counsel said on 20 November 2024, that on “expert advice” to Mr Yesberg, Cobalt levels were “highly variable in urine samples as the basis of urine concentrations”. And that “the Respondent considers his horse was dehydrated at the point in which the post-race urine sample was taken and was the cause of the high reading of Cobalt found in the analytical report”. So his Counsel requested that the remaining urine B sample be released to his named laboratory for using urine specific gravity testing, it being the appropriate test to determine dehydration through urine concentration.

(12)  The Adjudicative Committee directed that such should occur.

(13)  The result of that test did not provide evidence of dehydration. There was no basis for such a claim or belief of Mr Yesberg (as in RIB v McKenzie 16/9/22).

(14)  Mr Yesberg asserts the view of Dr Major, that “urine is an unreliable source for testing Cobalt”, with a blood test being the only reliable test. Mr Yesberg claimed that a blood, not urine test, should have been taken. But his stance, and that of Dr Major, ignores the fact that the then Rule defined Cobalt in urine at a certain level as being the only test for it being a “Prohibited Substance”. No amount of blood testing levels could come within the “Prohibited Substance” definition provided in the Rules.

(15)  So, after Mr Yesberg, through his Counsel, admitted his breach of the Rules, the Adjudicative Committee provided a timetable for the presentation of penalty submissions.  And although this time had elapsed, Counsel advised that Mr Yesberg wished to make penalty submissions himself. So, the Adjudicative Committee allowed Mr Yesberg a further time indulgence.

(16)  Before the Adjudicative Committee turns to the new claims and submissions now presented by Mr Yesberg, it records that his admissions in his initial interview with the RIB Investigator were, that he injected the horse with Hemoplex 3 times in the week prior to racing on Sunday 28 July 2024. That is, on Monday, Wednesday and Friday of that week, with a Cobalt Substance, Hemoplex, with the final injection being on the evening after the horse raced that day.

(17)  The expert opinion of Dr Grierson is that injections of Hemoplex may raise Cobalt levels above the 100 ug/L threshold. This opinion was also given and accepted in RIB v McKenzie. When Mr Yesberg’s admitted actions are seen in the context of 3 injections of Hemoplex over 5 days immediately before racing, with a Cobalt level of over twice than permitted, his latest claim (“contaminated feed”) is unsustainable. This was never advanced until very recently. It appears to comprise a theory based on Dr Major’s speculations, which had never been given or tested in evidence, since supplied to Mr Yesberg in October 2024. There is no evidence of his feed testing provided by Mr Yesberg. Further, this horse (and others) tested well below the threshold within a few weeks when there was likely to be a similar feeding regime. Also, Mr Yesberg, when represented by Counsel, never requested a “disputed facts hearing”, as he could have, had he challenged the RIB’s statement of facts. His new claim is not accepted as having any foundation.

Penalty

(18)  Rule 1004D(1) of the HRNZ Rules provide that any person who breaches the Prohibited Substance Rule 1004A shall be liable to:

(a) A fine not exceeding $20,000; and
(b) Be disqualified or suspended from holding or obtaining a License for any specific period not exceeding five years.

RIB Submissions

(19)  The Informant has referred to a number of earlier cases in both equine codes where fines of between $6,000 and $12,000 were imposed for similar breaches. Each case, however, must depend on its particular facts. The RIB referred to Mr Yesberg, in 2021, having had a further two breaches of the Prohibited Substance Rule (one Information but presented two horses to race at Ashburton trials) positive to Phenylbutazone, Ketoprofen (anti-inflammatory/ pain relief substances) and one horse also with Lasix (an anti-bleeding product). The Informant says this is an aggravating factor.

(20)  The RIB does not seek suspension or worse, but says a fine of $8,000 should follow, and it seeks a further order for costs fixed at $900.

(21)  Mr Yesberg submitted that:

(a)  As his “feed must have been contaminated”, he has done “nothing wrong “and that must have caused the “positive”. The Adjudicative Committee has already said that this is not established, accepted, or even suspected, given the facts of the case and he presented no credible evidence to support this.

(b)  He has been financially “significantly impacted” having to account for the approximate $6,000 stake to Owners (they from a syndicate of which Mr Yesberg is also a member) and has lost Owners because of the stigma of the charge, he says “and when we [sic] have done nothing wrong whatsoever”.

(c)  He refers to other cases where no penalty has been imposed on Trainers, but these all involved proven contaminated feed.

(d)  He is a young family man, struggling with finances.

(e)  He should be the party seeking costs, not the RIB, because he claims the RIB Investigators made misleading statements to him and of the procedures it adopted in pursuing the proceedings.

Outcome

(22)  These proceedings relate to the behaviour and liability of a Licensed professional person breaching the Rules of his profession. They cannot be entirely equated with a Criminal Court process and decisions – but nevertheless, assistance can be obtained by reference to general “sentencing” principles. Mr Yesberg will be aware of them. Some are recited in the decision of August 2021 relating to his earlier “Prohibited Substance” breaches. These include:

(a)  Some degree of punishment, but not retributive so as to be a disproportionate outcome.

(b)  In the context of the Racing Industry and profession, it is vital that a penalty deters others from similar behaviour.

(c)  A penalty should also reflect the disapproval of the RIB for such behaviour, negligent or deliberate.

(d)  The integrity of the profession and its representation and confidence of the wider public is important.

(23)  Mr Yesberg’s duty as a Licensed Trainer falls into the comments of the Adjudicative Committee in the McKenzie case. There, Hemoplex was injected into a horse and it “carries a ‘Restrict Vet” label on it and as such, should serve as a warning to Trainers or others who use it …. there is an obligation [on] Licensed Trainers to be aware of what they are giving to their horses as part of their feed and supplement regime …. [this] is an expectation as a professional obligation of being a Licensed Person”.

(24)  While the HRNZ Penalty Guide applicable for a second Prohibited Substance offence refers to fines up to $20,000 and/or disqualification, it already incorporates the aggravation of one prior offence. But, here there existed not one, but two previous breaches of this type (although one global penalty was imposed). A higher starting point might well be imposed in this case. However, the Adjudicative Committee accords some distinct leniency to Mr Yesberg and fixes the starting point at only an $8,000 fine.

(25)  Nevertheless, it is an aggravating factor that his deliberate actions in injecting the horse, and that this was the third (not second offence of this nature), which requires an uplift of $1,500.

(26)  The Adjudicative Committee is not able to discern any truly mitigating features. The only possible one is the RIB’s generous concession that “he be afforded some credit” for his eventual admission. But this has to be seen in the light of his now claim, and adamant stance, that he did “nothing wrong”.

(27)  Licensees who breach the HRNZ (and NZTR) Rules should understand that penalty “discounts” are not to be given as an automatic response to the offence simply because there is eventual acceptance of guilt. The New Zealand Supreme Court and Court of Appeal have made it clear that a guilty plea does not automatically mean some discounting will follow. Each case is to be judged on all the circumstances involved, including (but not exclusively) the earlier and prompt timing of the plea, the saving of trauma and stress to witnesses, the reduction in expense and prosecution time. Inevitable certainty of conviction may also be a factor. Remorse or genuine contrition or sorrow is a separate factor, if it exists, for consideration (Hessell v R [2010] NZSC135, Moses v R [2020] NZCA 296).

(28)  In Mr Yesberg’s case, the RIB’s prosecution case strength was overwhelming. Any realistic defence appeared futile. There was no scientific testing by him of feed used, which he could well have done since October 2024. As was his entitlement, he has utilised every possible approach to avoid liability and minimise his breach. He now contends that he should be discharged without any sanction or penalty. That is fatuous and ingenuous. He shows no remorse, contrition, or insight. This is not a case where an error or negligence on the part of staff occurred. It was he who injected the horse with Hemoplex, 3 times.

(29)  However, the Adjudicative Committee is prepared to afford a small discount given the RIB’s stance that some “recognition” follows his admission. This is despite him still insisting he did no wrong. His lack of insight, remorse and contrition is not aggravating but it does not enable him to present mitigation for such. Mr Yesberg should clearly understand that any further breach of presenting a horse with a Prohibited Substance is likely to put his privilege (not “right”) to retain a Licence in jeopardy.

(30)  The Adjudicative Committee imposes a fine of $8,500 and does not make an order cancelling or suspending his Licence. But he should recognise this approach as being lenient and should clearly understand that if any further breaches of the Prohibited Substance Rules should occur, his involvement in the Harness Racing profession is likely to be in jeopardy.

Addendum

(31)  Because of several misguided and intemperate statements made by Mr Yesberg in his submissions, it is necessary for the Adjudicative Committee to add the following remarks.

(32)  Mr Yesberg has made allegations directed at the RIB. These include:

(a)  His statement that RIB Investigators “misled” him as to blood tests for Cobalt. That is not correct. Only a urine test was then able to determine whether the Cobalt in this horse reached a level so as to be classified as a “Prohibited Substance” and that had to be only if it was in the urine sample. Otherwise, there was no offence. A blood test could not determine whether the “Prohibited Substance” test was met.

(b)  His view that Dr Grierson “has not kept pace with the latest science”, has no foundation. As recently as 2020, (in RIU v McKenzie), the difference of opinion of him and that of Dr Major was canvassed and the then Committee found in favour of those of Dr Grierson. That may be Dr Major’s opinion, but it has no foundation.

(c)  In para (24) of his penalty submission, he says that he “wishes to remind this Committee” that the RIB altered the makeup of the original Committee to its present members “because they didn’t like the decision they were about to make”. This is an untrue and regrettable statement. The present Adjudicative Committee was appointed many months ago, to hear the Information only because Mr Yesberg or a lay advocate on his behalf, claimed (on 16 October 2024) that he would not be attending at any meeting at which a member of the then Committee was present, as “he has been totally discredited”. He said it “frankly reflects poorly on you that he is still on the panel”. In order to placate Mr Yesberg – although he was making such unfounded claims, the present Adjudicative Committee was appointed.

(d)  Mr Yesberg has further alleged that the RIB did not “like the decision you [that is this Committee] were about to make [so] they challenged this through the Crown Lawyers Office”. This has no relevance or bearing on the proceedings. The Adjudicative Committee can, and did, regulate its proper process, made to ensure overall fairness to Mr Yesberg’s Counsel who had sought a “direction”. Mr Yesberg appears to have a distorted or jaundiced view of how the disciplinary process proceeds.

(33)  The penalty level is not fixed or in any way altered, to reflect Mr Yesberg’s wrongful claims, but his remarks should not have been said nor go uncorrected.

(34)  Mr Yesberg:

(a)  Is fined $8,500.

(b)  Ordered to pay $900 to the RIB, being 60% of its actual incurred expenses.

(c)  Is ordered to pay $1,000 to the Adjudicative Committee, being 50% of its incurred expenses and costs etc.