Non Raceday Inquiry – Written Decision dated 26 August 2022 – Darren Smith

Evidence
1. The horse TAZIMOTO was, today, disqualified from First Placing in the Lion Red Punters Challenge Maiden 200 run at Ruakaka Racecourse on 4 May 2022. The decision to that effect has been issued today.

2. Separately Mr Smith, the Respondent, was charged under two separate Informations (A16414 and A16415) with two breaches of Rule 804(6) and Rule 656(3). They were that:
a. Being the Trainer of and responsible for TAZIMOTO on 4 May 2022 he brought the horse to the race meeting and it competed, after which it returned a positive analysis from a post-race swab, to the controlled drug Methamphetamine, a prohibited substance; and
b. That on 24 May 2022 having been required to provide a urine sample, he provided urine which upon analysis was found to contain the illicit controlled drugs Methamphetamine and Amphetamine in breach of Rule 656(3) which provides that:
“A Rider, or any other Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s premises who, having been required by a Stipendiary Steward or Investigator to supply a sample in accordance with this rule [drug testing] must not have a sample which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites …”

3. A Stablehand Licensee has separately been charged with the same breach of Rule 656(3) in providing a urine sample, on 22 May 2022, which was positive to the illicit controlled drugs Methamphetamine and Amphetamine. This is dealt with under the separate Information A16412.

4. Mr Smith admitted the two breaches of the Rules.

5. The penalty provisions in the Rules provide:
a. For the breach of Rule 804(7), in being responsible for and producing a horse to race when positive to a prohibited substance, disqualification for up to five years or suspension of licence for up to 12 months and/or fine of up to $25,000.
b. For returning a urine sample when engaged in a Safety Sensitive Activity (Rule 803(3)) which on analysis is positive to a prohibited illicit drug, disqualification and/or suspension of a licence for up to 12 months and/or a fine of up to $50,000.

Background Facts
6. After the analysis of the positive swab from TAZIMOTO was returned from the New Zealand Laboratory (the analysis was for the Class A prohibited drug Methamphetamine and the Class B prohibited drug Amphetamine) Mr Smith was interviewed by the RIB Investigator. He said that he “could not explain” how the positive came about. He requested that the “B” sample be tested which occurred at the Australian Laboratory (RASL). That analysis was also positive to the prohibited drugs.

7. On 24 May 2022 the Investigator obtained urine and hair samples from both Mr Smith and the Stablehand. His training business did not involve outside clients, as was limited to Mr Smith being an Owner or Part Owner Trainer and of up to six horses.

8. The urine and hair samples then obtained from Mr Smith, on analysis tested positive to Methamphetamine and Amphetamine.

Penalty Discussion
9. Mr Westerlund, on behalf of the RIB, submitted that:
a. For the offending relating to being responsible for TAZIMOTO racing on 4 May 2022 (Information A16414) a “substantial period of disqualification” was necessary.
b. In addition he submitted that a cumulative term of disqualification was required for the positive urine sample provided on 24 May 2022 (Information A16414).
c. A total period of four years disqualification was said to be appropriate.

10. The Adjudicative Committee was referred to a number of penalties imposed in previous cases on Trainers who presented or were responsible for horses and greyhounds that competed when positive to Methamphetamine. These resulted in periods of disqualification, ranging from 18 months to 3 years. These included RIB v Lockett (April 2022); RIB v Toomer (August 2022); RIU v Newton (2014); RIU v Schofield (2018) and RIB v Turnwald (May 2021).

11. In relation to the charge of returning the positive sample on 24 May 2022, the Adjudicative Committee was referred to previous cases resulting in penalties or suspensions of 10–12 months.

Submissions of Mr Smith
12. In written, and oral, submissions presented to the Adjudicative Committee, it was contended:
a. The Stablehand employee had been a user of Methamphetamine and caused Mr Smith to be unintentionally contaminated by Methamphetamine.
b. It was the Stablehand’s handling of TAZIMOTO that caused the horse to test positive on raceday of 4 May 2022.
c. Mr Smith said he had never consumed Methamphetamine in any form. He said that the positive analysis of both urine (and hair) samples provided on 24 May 2022 could only have arisen from some association with his employee. He subsequently privately underwent a hair sample test on 4 August 2022 (10 weeks after being tested on 24 May 2022).  The return was negative to illicit drugs.
d. Mr Smith said his business was primarily in “pin hooking” yearlings to prepare for sale as two year olds. He currently owns four racing horses, and one two year old. He had only recently (in April 2022) obtained his Class B Trainers Licence.
e. He tendered references as to his character from a Trainer and long term Foreman and Trackwork Rider at Ruakaka.

Discussion as to Penalty
13. Although the charge of returning the positive sample on 24 May 2022 relates only to the urine sample, the hair sample from Mr Smith reveals that Methamphetamine use, present in his system, whether from use by him or another, was long term. Samples then taken from his employee also reveal long term use. It is known that urine tests can detect Methamphetamine for up to three to five days, but hair sample tests cannot detect the short term use of the drug – that is because it has to travel from the bloodstream to hair follicles which then takes longer. But the presence of the drug can be detected in hair for up to 90 days. It often illustrates long term or chronic use of Methamphetamine. That is why the Salvation Army Counsellor for the employee (who is being treated) indicated that long term treatment was required, possibly later residential.

14. The hair sample returns of Mr Smith and the employee were indicative of long term use, or presence in bloodstream (however it got there).  The level returned from the analysis were significantly elevated.

15. Although Mr Smith is adamant that he did not use Methamphetamine, it does not necessarily follow that on 4 May 2022 when TAZIMOTO raced, his actions, as well as those of his employee, did not lead to the positive swab. The hair tests establish presence of the drug in their bodies at that time. No scientific or expert medical information was presented by Mr Smith to corroborate the opinion advanced that there had been human transferral to him. It is not necessary or possible for us to decide that issue. Mr Smith accepts he is liable for, firstly, the breach arising from the TAZIMOTO positive, and secondly, for his positive urine sample when training horses on 24 May 2022.

16. It is, or should be, well known that the interests of the Industry, its Participants, Safety, the Public and Animal Welfare, predominate where a toxic, dangerous and addictive drug such as Methamphetamine, is associated with horse or greyhound Racing. It has been emphasised in RIU v Alford (10 May 2021):
“If animal welfare standards are not upheld in the industry and when necessary, with condign sanctions by the Judicial Control Authority, the industry cannot maintain a social license in order to continue to operate.
Methamphetamine is a potent central nervous system stimulant which poses significant animal health and welfare issues, it is an illegal Class A drug.”
And also in RIB v Turnwald (Appeal May 2021):
“The matter of Animal Welfare in the Industry is a paramount consideration and any breach must not be tolerated as it strikes at the very heart of the integrity and reputation of the industry.
It is incumbent on Owners and Trainers to protect their animals from exposure to Methamphetamine.
The penalty imposed must act to denounce this offence. The nature of the drug involved namely Methamphetamine is a particularly aggravating factor and the need for general deterrence requires a more severe penalty.”

17. Trainers of horses must be vigilant in how they manage horses, their staff and those who assist whether as Trackwork Riders, Stablehands or the like. If the contamination of TAZIMOTO was only from the employee we do not accept it as credible that Mr Smith did not know or suspect of long term use. It is well known that this highly addictive toxic and dangerous drug will produce physical and behavioural signs which include, not sleeping, not eating, hyperactivity, mood swings, relationship problems, weight loss, inflamed eyes and more. As employer of his Stablehand, he must have, if vigilant, been alerted, even if he was not similarly involved. If not alerted then he was carelessly in default of his duty to assiduously manage his horses.

18. We conclude that a total term of four years disqualification sought by the Informant would be excessive. There can only be a disqualification or suspension of up to 12 months (or fine) for the breach of Rule 656(3). We fix that penalty at nine months disqualification. For the more serious breach of Rule 804(6), we impose a term of disqualification of 18 months. This disqualification is to commence today, 23 August 2022. The nine months disqualification is to be cumulative, so that it will commence upon the conclusion of the 18 months disqualification. The effect is a total disqualification period of two years and three months.

19. There is no order as to costs, but Mr Smith is ordered to pay to the RIB $1,316.87 being the expenses incurred in having the “B” sample analysed.  In addition he is required to pay $187.50 to the RIB being the cost of the analysis of his urine sample.