Non-Raceday Inquiry – Written Decision dated 9 May 2022 – Bruce Herd

1. Mr B Herd is a Class B (Misc.) licensed freelance Trackwork Rider. He is charged with a breach of Rule 656(3) of the Rules of Racing. That Rule provides that:

“A Rider, or any other Licence holder who has carried out, is carrying out, is likely to carry out, a safety sensitivity activity at a racecourse, who having been required by a Stipendiary Steward or Investigator to supply a sample urine .... must not have a sample which is found upon analysis to contain any sort of controlled drug as defined in the Misuse of Drugs Act, 1975 …”

2. On 4 March 2022 at Palmerston North Racecourse, Mr Herd, as a licensed Trackwork Rider, rode a horse in an exhibition gallop, after which he was required by a RIB Investigator to undertake a drug test by the Drug Detection Agency.  The urine sample obtained from him was forwarded to the ESR for analysis and was confirmed on 9 March 2022 as positive to the Class C Controlled Drug Cannabis at a THC level of  >130ng/m [nanograms per millilitre].  In accordance with Rule 657(1)(b) Mr Herd was ‘stood down’ and his licence automatically withdrawn on 16 March 2022.

3.  The issue of penalty has been dealt with today.  Mr Herd was served with the Information and chose not to make submissions.  Ms Morrow as Informant, made written submissions which, in summary:

(a)  Referred to four well known sentencing principles (punishment, deterrence of others, disapproval of the profession, rehabilitation).

(b)  Provided examples of other penalty decisions where Trackwork Riders tested positive to THC Cannabis samples:

• RIB – A Scott (9 weeks suspension)
• RIU – J Robinson (6 weeks suspension)
• RIU – T Asker (6 weeks suspension)
• RIU – S Collins (6 weeks suspension)

(c)  Advised that Mr Herd had no previous breaches of this Rule relating to adverse findings upon urine analysis (having not had a sample undertaken for testing previously).  But he had a prior drug related breach (in 2008) where he pleaded guilty to a Serious Racing Offence in 2008.  He then switched urine samples with another Jockey during a routine drug test.

(d)  A 6 week’s suspension and costs of $187.50 for the ESR analysis test was sought.

4.  Mitigating features include Mr Herd’s compliance with the Investigator and his guilty plea (although any defence would have been futile).  We were not informed of his personal or family circumstances but were advised that he was in a very difficult financial position.  We record that Mr Herd had previously been a very prominent and successful Class A Licensed Rider.

5.  There is no reason for us to distinguish Mr Herd’s breach from most others.  It appears that the RIB requests that Mr Herd provides a negative drug test before his licence is reinstated.  This provides a difficulty as the RIB submitted that the commencement of the suspension could be backdated, but if his licence was withdrawn on 16 March 2022, any 6 week suspension would have concluded on 27 April 2022.

6.  And there appears to be a conundrum in the Rules which, in Rule 657(1)(b) provide that a licence is to be automatically withdrawn from the date of the written notice, (which has occurred here), “until the Adjudicative Committee issues a substantive decision filed against that person in relation to that sample …”.  So it appears that the licence is suspended/withdrawn until the Adjudicative Committee decision today and it cannot be deemed to have been restored earlier through backdating.

7.  It is necessary to add that the requirements in Rules 657(2)(a) and (b) which relate to the provision by the Jockey of a clean sample, seems to apply only to the situation where no Information has been filed within 21 days.  But, nevertheless, Rule 322 enables the NZTR to impose conditions on the issue of a licence, on reasonable grounds, which include a Rider who carries out a Safety Sensitive Activity at a racecourse, to submit, if requested, to a urine sample test.  That will apply here if the NZTR considers it appropriate, and in addition, conditions attaching to the grant or renewal of a licence can, if the NZTR directs, be dealt with under Rule 322 plus any application for renewal of a licence which has to be made by 1 July in any year can also be subject to any conditions imposed.  The point of this discussion is that it is for the RIB and NZTR, rather than this Adjudicative Committee to direct what Mr Herd must do to retain, or restore his licence.

8.  These are some thoughts that the NZTR may consider but the end position is that the Adjudicative Committee is not able to “backdate” the suspension request to the extent sought.  Because of the operation of Rule 657(1)(b) the suspension can only be from 16 March 2022 when it was withdrawn until today at 5pm, 6 May 2022.

9.  Conditions as to the continued licence can, if the NZTR directs, be dealt with under Rule 322.  In any event, when licence renewal is made, as it must by 1 July, (Rule 319), conditions can be dealt with.

OUTCOME:

10.  Mr Herd’s Class B (Misc.) Licence is suspended for 7 weeks and 1 day, commencing 5pm 16 March 2022 and concluding 5pm 6 May 2022.

11.  He is ordered to pay to the RIB $187.50 being the costs incurred in the analysis by the SSR.

Hon J W Gendall QC (Chair)

Mr T Castles (Member)

6 May 2022