Non Raceday Inquiry – Written Penalty Decision dated 20 September 2023 – Stephen and Amanda Telfer

Introduction

[1] This is the Penalty Decision arising from the charge filed against the Licenced (Harness) Training Partnership of Stephen and Amanda Telfer (hereafter referred to as either the ‘Respondents’ or ‘Team Telfer’).

Determination on the Papers

[2] Pursuant to r 21.1 of the Fifth Schedule – of the Rules of Practice and Procedure for Adjudicative Committees, with the consent of the Applicant (Mr Carr) and the Respondents (Team Telfer), this matter was determined solely on the basis of documents and evidence filed by the Applicant and Respondents, without the need for an oral hearing.

The Charge

[3] By way of Memorandum Mr M Clement, the Chief Executive of the Racing Integrity Board (RIB) authorised the filing of this charge against the Respondents, alleging they breached Rule 1004A(2) and (4) of Harness Racing New Zealand Rules of Racing.

[4] The particulars of the charge, Information number A17975, are that:

On 14th July 2023 at the Auckland Trotting Club meeting at Alexandra Park, Stephen and Amanda Telfer being the Registered Licenced Trainers in Partnership of the horse, presented SEASIDESTAR for the purpose of engaging in and did engage in Race 9 failing to present the said horse, free of the Prohibited Substances namely Phenylbutazone and Oxyphenbutazone in breach of the New Zealand Harness Racing Rules 1004A(2) and (4) and subject to the penalties pursuant to Rules 1004D(1) and (2).

Disqualification of SEASIDESTAR

[5] An earlier Request for a Ruling Decision resulted in SEASIDESTAR being disqualified from its first placing in Race 9 at the Auckland Trotting Club Meeting on 14 July 2023. This Decision was published on the RIB Website – (refer Non Raceday Request for a Ruling – Written Decision dated 5 September 2023 – SEASIDESTAR).

[6] The effect of the disqualification from a race is contained within R1308 and R1308A.

The Relevant Rules

[7] Rule 1004A provides that:

2) A horse shall be presented for a race free of prohibited substances.

(4) When a horse is presented to race in contravention of sub – rule (2) or (3) the trainer of the horse commits a breach of these Rules.

Disqualification From Race

[8] Rule 1004E provides that:

(1) Any horse taken to a racecourse for the purpose of engaging in a race which is found to have administered to it or ingested by it a prohibited substance or an out of competition prohibited substance must be disqualified from that race.

(2) The mandatory disqualification under sub-rule (1) applies regardless of the circumstances in which the substance came to be present in or on the horse.

Rule 1008 provides that in the absence of any express provision to the contrary in any proceeding for a breach of these Rules:

a) it shall not be necessary for the Informant to prove that the Defendant or any person intended to commit that or any breach of the Rule; and

b) any breach of a Rule shall be considered as an offence of strict liability.

The Plea

[9] The Respondents admitted the breach. The charge is therefore proved.

Summary of Facts (Salient points)

[10] The facts and RIB penalty submissions are not disputed. The key salient facts of the breach are summarised are as follows.

[11] The Respondent(s) in this matter are Licenced Public Trainers in Partnership under the New Zealand Rules of Harness Racing (HRNZ).

[12] On 14 July 2023, SEASIDESTAR who is trained by Team Telfer, won Race 9 at the Auckland Trotting Club meeting at Alexandra Park. The gross stake money for 1st was $6,600.

[13] SEASIDESTAR was post-race swabbed following Race 9 after being presented to the swab box by Team Telfer Stable Foreman. On 28 July 2023, New Zealand Racing Laboratory Services (NZRLS) issued a Certificate of Analysis detailing the sample obtained from SEASIDESTAR on 14 July 2023 was positive to the Prohibited Substance – Phenylbutazone and Oxyphenbutazone (a metabolite of Phenylbutazone).

[14] Phenylbutazone is defined as a Prohibited Substance under the Prohibited Substance Regulations of the Rules of Racing falling under clause 1.1.6 and in the category of substance – Part A (1.2.21) anti-inflammatory agents within the meaning of the Rules. Phenylbutazone is a nonsteroidal anti-inflammatory drug (NSAID) and cyclooxygenase inhibitor. It is a potent pain reliever, antipyretic, and anti-inflammatory. In the horse, it is used commonly for lameness, resulting from soft-tissue injury, muscle soreness, bone and joint problems, and laminitis.

[15] Phenylbutazone is permitted in raceday samples as a therapeutic substance to a regulatory limit of mass concentration of 100 micrograms per litre in urine. The NZRLS has reported that the level in this sample is reported as exceeding 200 micrograms per litre (upper level of calibration used).

[16] Its presence therefore above the regulatory limit of 100 micrograms in a raceday sample is, prima facie, a breach of the Rules.

[17] Phenylbutazone is listed on the NZEVA Period of Detection List update in March 2023 with a listed detection time of 5 days. The listed Possible Withholding Time (WHT) is covered off in accompanying letter dated 20 March 2023 written by Dr Andrew Grierson, outlining changes to previous – May 2016 Phenylbutazone withholding times of 7 days.

[18] The new – March 2023 withholding time for Phenylbutazone being 9.8 days.

[19] On 31 July 2023, RIB Investigators visited the Team Telfer Stables in Clevedon. Interviews were undertaken with Mr Telfer along with associated employees who had been in contact with the horse in the week prior to the race on 14 July 2023.

[20] These enquiries established that although Team Telfer had a tub of Phenylbutazone (Bute) on the premises they very rarely administer ‘Bute’ to their racehorses preferring instead to use Meloxicam as an alternative. During his interview Mr Telfer stated: – “No, we have got a tub here for the mares and foals and out of racehorses. We don’t like to use ‘Bute’ on the racehorses because of the strength on their stomach. Meloxicam we find is a shorter withhold and its kinder on the horse, so we use Meloxicam a lot.

[21] When Mr Telfer was questioned regarding his knowledge of the withholding period for Phenylbutazone he confirmed: – “I know it went out a bit, it was always around a week but I know there’s a clear day as well so it might be up around eight/nine days”.

[22] Copies of both the medication record book and Horse Health and Farrier Report outlining individualised horse treatments for the horse was obtained. SEASIDESTAR is referred to in these records by her stable name – ‘Halo’. A review of these records notes that ‘Halo’ had not been administered any Phenylbutazone in the 12 days prior to the race.

[23] Records indicated that ‘Halo’ was administered Meloxicam on 6 July 2023 by an employee with last recorded medication being Ese-Ese that was administered by the Mr Telfer on 12 July 2023, two days prior to the race.

[24] The medical records identified only the one horse at the Team Telfer’s Clevedon Stables being a yearling with a foot bruise, that has been administered Phenylbutazone in the week prior to the race. The yearling was orally administered 10ml of Phenylbutazone on 10 July 2023.

[25] A 1000ml tub of Phenylbutazone paste prescribed by Auckland Vet Clinic, dated 26 June 2023 was located on the premises secured in the lockable room referred to as the ‘lab’ in the older barn. It was noted that Meloxicam was secured separately in a lockable fridge located within the room.

[26] All employees interviewed and a review of the CCTV Footage from both Telfer’s Barn in the week leading up until the race and Alexandra Park on the night of the race meeting has failed to identify any evidence of the administration of Phenylbutazone to SEASIDESTAR.

[27] Enquiries were undertaken with NZEVA Chief Veterinarian – Dr Andrew Grierson to assist with potential administration timings and dosage or possible cross contamination that has occurred to register the Phenylbutazone level detected by NZRLS. Dr Grierson’s response: – “I cannot with surety determine when an administration occurred. The size of the dose logically has an effect on the level detected in urine after administration. If Phenylbutazone is administered when feed is available uptake is delayed so the peak plasma concentration and urinary levels also become delayed.”

[28] Mr Telfer requested for the ‘B Sample’ to be independently tested and elected for the sample to be tested by Racing Analytical Services Ltd (RASL) in Victoria, Australia. RASL have confirmed that their analysis of the ‘B Sample’ has shown the presence of both Phenylbutazone and Oxyphenbutazone.

[29] RASL approximate the concentration of Phenylbutazone in the ‘B Sample’ to be about 3700ng/ml.

Penalty Submissions – Applicant (RIB)

[30] The Respondents are Licenced to train under the New Zealand Rules of Harness Racing (HRNZ). They operate two Stables, with Mr Telfer being based in Clevedon, Auckland and Co-Trainer Ms Telfer based in their South Island Stable in Rolleston, Christchurch.

[31] Mr Telfer has held a Public Trainers Licence since August 2007. He and Ms Telfer have been in Partnership since June 2023. They were first Licenced in Partnership in August 2020. Between January 2023 to June 2023, they trained in Partnership with Mr Hayden Cullen.

[32] The Respondents have admitted the breach and on admission of breach, SEASIDERSTAR was subsequently disqualified – refer paragraph 5.

[33] Enquiries into the Respondents’ judicial record with Harness Racing New Zealand [HRNZ], confirms they have no previous breaches of the Prohibited Substance Rule or any Serious Racing Offences.

Sentencing Principles

[34] The RIB submits that the three principles of sentencing relevant to this charge are summarised as follows:

a) 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.

b) In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

c) A penalty should also reflect the disapproval of the RIB for the type of behaviour in question.

Precedent cases

[35] In terms of previous penalties for similar Rule breaches, the RIB refers to the following Penalty Decisions which includes both Harness and Thoroughbred Codes and includes breaches that have been detected on raceday and at trial meetings.

Harness

RIB V Kerr (2022)

[36] Positive to Bute, Oxyphenbutazone at a trial meeting. Fined $3,000 and horse disqualified.

[37] In considering this case, the Adjudicative Committee advised the following: –

“The Respondent has been in the Harness Racing Industry as a Trainer for almost 40 years and has trained 315 winners, including 24 in partnership with his son. His involvement and experience in the Industry is vast and it is, therefore, rather surprising that he has now found himself facing the charge, after making what could be described as a “schoolboy mistake”.

RIB V SmolenskI (2021)

[38] Positive to Bute and Oxyphenbutazone at a race meeting. Fined $4,200 and horse disqualified.

RIB V Yesberg (2021)

[39] 2 x positives to Bute, Oxyphenbutazone, Ketroprofen and Furosemide at a trial meeting. Fined $3,500 and horses disqualified.

RIB V Barron (2018)

[40] Positive to Flunixin (NSAID) at a trial meeting. No source of the positive identified. $3,000 fine and horse disqualified. The Committee commented that this was not a case of negligent or deliberate administration or poor timing and therefore B’s culpability was low.

RIB V Vince (2021)

[41] Positive to Phenylbutazone and Oxyphenbutazone at a race meeting. The source of the positive was not identified but likely to be through contamination. $3,400 fine and the horse disqualified.

Thoroughbred

RIB V Walker (2023)

[42] Positive to Meloxicam in a Group 1 Race. Fined $7,000 and horse disqualified.

In considering this case the Adjudicative Committee emphasised:

“Although the Adjudicative Committee is assured Te Akau Racing applies high standards of care, a submission that the Adjudicative Committee accepts, this incident should serve as a timely reminder, not only to Te Akau, but also other Stables, that quality assurance systems need to be in place to prevent a mistake being made when treating horses with substances that may otherwise be permitted within withholding times or guidelines.”

RIB V Alexander (2020)

[43] Positive to Phenylbutazone and Oxyphenbutazone at a trial meeting. $2,400 fine and horse disqualified. The Committee commented that there is no evidence before it to suggest a deliberate intent to deceive or gain an advantage and that the administration was an honest mistake due to a communication breakdown between the training partners.

RIB V Pertab (2019)

[44] In March 2019, Mr Pertab, a Class B Trainer, admitted a breach of Rule 804(2). This was in relation to his horse, “2g Rock ‘n’ Pop (AUS) – Nicole Amy” which tested positive to the Prohibited Substance, Meloxicam following a post-race swab after starting in Heat 6 of the Matamata Racing Club Trials. Mr Pertab could offer no explanation for the positive result, other than possible cross contamination from another horse he was training that was prescribed Meloxicam by his Vet.

[45] In considering this case, the Adjudicative Committee advised the following: – “We have regard that this is not a situation where the Prohibited Substance, Meloxicam was given to enhance performance, but rather the likely cause was cross contamination.”

[46] The outcome in this case was a fine of $3,000.

RIB V Lucock and Gillespie (2018)

[47] Positive to Phenylbutazone and Oxyphenbutazone at a trial meeting. $2,400 fine and horse disqualified. The Committee commented that there is no evidence before it to suggest a deliberate intent to deceive or gain an advantage and that the administration was an honest mistake due to a communication breakdown between the training partners.

RIB V Clotworthy (11/2019)

[48] In RIB v Clotworthy, the drug in question – Clenbuterol – was found at the Trainers’ premises but there was conjecture the contamination may have occurred at the Racecourse.

[49] Shaun and Emma Clotworthy are Licensed Class A Trainers under the New Zealand Thoroughbred Racing Rules (NZTR). On 20 July 2019 at New Plymouth, they presented the horse ‘Zabdi’ in Race 2. The horse won the race and when subsequently tested, was found to have in its metabolism the Prohibited Substance Clenbuterol. This in breach of the NZTR Racing Rule 804(2). In considering this case the Adjudicative Committee emphasised:

“There is no suggestion that Mr and Mrs Clotworthy acted deliberately in breach of the Rules or that any of their conduct was directed towards somehow “cheating the system”. Inadvertent contamination of thoroughbreds can occur in a wide variety of circumstances and in many of those circumstances, there is no fault on the part of the Trainer or Trainers”.

[50] The outcome in this case was a fine of $2,500.

Mitigating Factors

[51] The Respondents and employees of ‘Team Telfer’ have cooperated fully with Investigators, with Mr Telfer on behalf of the Respondents, admitting the charge at the earliest opportunity.

[52] That the Respondents have no previous breaches of the Prohibited Substance Rule or any Serious Racing Offences with Harness Racing New Zealand.

[53] The Respondents store Phenylbutazone within a lockable room and have CCTV Cameras installed internally within the main barn and tie up areas.

Aggravating Factors

[54] That legal precedent provides that Trainers have an absolute liability for presenting their horses free of Prohibited Substances.

[55] The Laboratory have advised that the level detected exceeded 200 micrograms per litre, being the upper limit of the calibration range of the method used.

Conclusion

[56] When determining penalty, the RIB submits that the Adjudicative Committee has regard to the purpose of the proceedings, which include (a) to ensure the Rules are complied with; (b) to uphold and maintain the high standards expected of Trainers; and (c) to protect the integrity of Harness Racing.

[57] The RIB submits that this breach can be dealt with by way of a monetary penalty.

[58] In establishing an appropriate penalty, we acknowledge the RIB Harness Racing Penalty Guide that came into effective on 1 February 2023, identifies a starting point penalty for Prohibited Substances – Presenting Offences for a first offence – $8,000 fine and a second offence – two-year disqualification and fine of up to $20,000.

[59] The RIB has been unable to establish the exact cause of the exposure of Phenylbutazone and the Respondents had no explanation for the presence of the substance in the horse’s system. Therefore, it cannot not be determined whether this level has come about as administration of a therapeutic substance or potential contamination.

[60] Given the mitigating and aggravating factors as listed and the overall circumstances considered in this case, the RIB adopts a starting point of $4,500 as an appropriate financial penalty, with adjustment at the Adjudicative Committee’s discretion to support the principle of general deterrence.

[61] In conclusion, the RIB seeks costs of $1,586.35 plus GST for the analysis of the ‘B Sample’.

Penalty Submissions – Respondents

[62] Mr Telfer provided a written penalty submission on behalf of the Respondents. This is summarised as follows.

[63] The Respondents have admitted one charge in breach of the Rule 1004A(2) and (4) of the New Zealand Harness Racing Rules.

[64] The notification of the positive swab result was a great shock. Mr Telfer has held a Training Licence since 2007 and trained over 550 winners, and this is the first breach of the Prohibited Substance Rule or any Serious Racing Offence.

[65] The Respondents keep a daily diary and an online Stable Secretary diary that records all that the horses have done or had administered. The filly SEASIDESTAR has not at any time required treatment with Bute, and it is not a medication used on the racing team, with Meloxicam being preferred.

[66] As noted in the RIB Submission, a tub of Bute is kept on the property should any of the broodmares or younger stock require the use of it.

[67] Medications are secured in a lockable storage unit.

[68] The Respondents have interviewed all of their staff and reviewed all of the available video footage (10 security cameras) with nothing coming to light as to when, where or why the medication was administered. The Respondents find this very frustrating and stressful, as there is no logical explanation for the positive swab result.

[69] The Respondents have since further upgraded security systems with security gates and additional video cameras on site. Also, changes have been made to stable in-house procedures and protocols with limited access for staff.

[70] Finally, the Respondents submit that they have co-operated fully with the RIB investigating team.

Reasons for Decision

[71] The Adjudicative Committee has considered all of the relevant facts as well as the penalty submissions lodged by both Mr Carr on behalf of the Applicant, and Mr Telfer on behalf of the Respondents.

[72] For conformity, the Adjudicative Committee’s decision-making was informed and supported by the RIB Penalty Guide and precedent Penalty Decisions arising from similar charges.

[73] In addition, the Adjudicative Committee has had due regard for the specific circumstances of this case in terms of the Respondent’s culpability, as well as the steps taken by them to identify the source of the substance and significant measures that have since been taken to enhance security and protocols/procedures within the stable environment.

[74] The RIB investigation was unable to confirm or negate, with any degree of certainty, how, where or when the Prohibited Substance got into the horse’s (SEASIDESTAR) system. An inability to detect the source of a Prohibited Substance is not uncommon in breaches of this nature and in the absence of cogent evidence, the Adjudicative Committee can only speculate as to its origin. It is also worth emphasising that, but for the mandated withholding requirements, Phenylbutazone is prescribed and can be used for therapeutic purposes.

[75] Based on the agreed Summary of Facts, there is absolutely no suggestion of foul play; an intent to deceive, or any reckless or deliberate act on the part of the Respondents or any of their staff. It is more likely that a mistake or error has occurred by a person or persons unknown, which has resulted in the positive swab. This is the likely scenario given that (a) the stable medical records identified that only the one horse in the stable had been administered Phenylbutazone in the week prior to the race. This, being a yearling, who was orally administered 10ml of Phenylbutazone on the 10 July 2023; and (b) a 1000ml tub of Phenylbutazone paste prescribed by Auckland Vet Clinic, dated 26 June 2023 was located on the premises, secured in the lockable room referred to as the ‘lab’ in the older barn.

[76] Although, it was noted by the RIB, that Meloxicam was secured separately in a lockable fridge located within the room. It does raise the possibility, in the absence of any other plausible explanation, that when the yearling was treated, cross contamination may have subsequently occurred. The Adjudicative Committee has noted this possibility and also noted that when it was raised in the Decision of RIU v Vince (2021), the Chief Veterinarian for HRNZ Dr A Grierson, in a Memorandum dated 30 November 2020 stated that:

“Using a paste ensures the right horse is treated and there is no mistaken administration by swapping of feed buckets which can be problematic in a racing stable. The injection is very irritant to tissues, so administration is only by the intravenous route and usually by veterinarians”.

[77] The RIB Penalty Guide establishes a starting point of an $8,000 fine for a first breach of this Rule.

[78] The RIB, in their submissions, referred to 10 precedent cases in which they submit offending is of a similar nature to this breach. The Adjudicative Committee has taken cognisance of those Decisions and in particular, noted the variance in penalties for similar offending, which in the main due to each case and penalty having been dealt with on a fact dependent basis.

[79] Although SEASIDESTAR won the race, there was no evidence of betting irregularities, or any evidence to suggest the Respondents sought to gain any advantage.

[80] In consideration of the precedent cases, the Adjudicative Committee believes that a raceday breach must have greater consequences than a breach detected at a trial meeting. Therefore, in its analysis of the precedent cases, the Adjudicative Committee is of the opinion that the cases of Kerr at a trial meeting) and Vince (at a race meeting) best match this breach and has taken some guidance from this. Kerr was fined $3,000, and Vince was fined $3,400.

[81] The RIB in their submission, suggested a starting point fine of $4,500. In the Adjudicative Commmittee’s judgement, a $4,000 starting point is more appropriate in the circumstances of this case.

Mitigating factors

[82] The Adjudicative Committee agrees with the mitigating factors highlighted by the RIB. In particular (a) the Respondents’ excellent record; (b) their admission of the breach at the first available opportunity; (c) their cooperation with the investigation; (d) the Respondents’ record keeping for medication for each horse they train and fact that the tub of Phenylbutazone was kept in a separate lockable area; (e) the steps they have taken to enhance security and procedures; and (f) by agreeing to have the matter dealt with on the papers, there was no need to convene an otherwise costly and time-consuming in-person hearing.

[83] Collectively, the mitigating factors are such that a 20% reduction from the starting point is justified. In dollar terms, this equates to an $800 reduction.

Aggravating factors

[84] There are no particular aggravating factors worthy of mention. Therefore, an uplift from the starting point is not deemed necessary.

Decision

[85] In the final result, the Adjudicative Committee imposes a fine of $3,200.

Costs

[86] The RIB has made no application for analysis costs of the original sample. However, they seek costs of $1,586.35 + GST for the analysis of the ‘B Sample’. Accordingly, the Adjudicative Committee orders that those costs be paid to the RIB by the Respondents.

[87] On that basis, and due to the fact this matter was determined ‘on the papers’, the Adjudicative Committee makes no order for costs in favour of the Adjudicative Committee or other costs that may have been incurred by the RIB.