Non Raceday Inquiry – Written Penalty Decision dated 25 March 2024 – Lance O’Sullivan and Andrew Scott

1. The Informant has filed one Information against the Respondents alleging they have committed an offence under Rule 804(2) of the NZ Rules of Thoroughbred Racing (the Rules), more particularly,

That on 1 January 2024, at Auckland Thoroughbred Racing Club Meeting at Pukekohe Park, Lance O’Sullivan and Andrew Scott, being Registered Trainers of the horse presented Karman Line for the purposes of engaging in and did engage in Race 7, being the Stella Artois 1400m, failing to present the said horse free of Prohibited Substance (Flunixin) in breach of Rule 804(2) and liable to a penalty imposed under Rules 804(7) and 804(8) of the Rules.

2. As noted in a Minute of the Adjudicative Committee of 1 March 2024, the Respondents have admitted the charge, and directions were made for this matter to be heard on the papers.

3. Submissions as to penalty were received from both parties.

BACKGROUND

4. On 1 January 2024 Karman Line won Race 7, being the Stella Artois 1400m at Auckland Thoroughbred Racing Club meeting at Pukekohe Park. The prize stake money for first place was $46,000.

5. Karman Line is a five-year-old mare trained by the Respondents out of Wexford Stables and is co-owned by 14 owners.

6. A post-race swab was undertaken on 1 January 2024 at 4:15pm.

7. On 12 January 2024, NZ Racing Laboratory Services (NZRLS) issued a Certificate of Analysis detailing that the sample obtained from Karman Line on 1 January 2024 was positive to the Prohibited Substance Flunixin.

8. Flunixin is defined as a Prohibited Substance under the Prohibited Substance Regulations of the Rules and falls within the category of anti-inflammatory agents.

9. Flunixin is an anti-inflammatory drug commonly used for pain relief to treat colic, corneal ulcers, uveitis and conjunctivitis.

10. Flunixin is classed as a therapeutic substance and permitted in Raceday samples with a regulatory limit of a concentration of 1.0mcg per litre of plasma.

11. NZRLS analysis reports that the level in the sample was reported as exceeding 2.0mcg.

12. The Racing Integrity Board (RIB) undertook enquiries at Wexford Stables on 15 January 2024 and subsequently interviewed the Respondents.

13. These enquiries established that Karman Line was kept at Kilmarnock Lodge in Matamata. An interview of the Kilmarnock Lodge Foreperson and review of onsite treatment records failed to identify that Karman Line had been treated with Flunixin.

14. Further enquiries were undertaken with Matamata Veterinary Services, the Registered Veterinarians for Wexford and Kilmarnock Lodge, and established that another horse Vivace (stable name Moth), had been prescribed 10mg of injectable Flunixin on 27 December 2023 by the Veterinarian.

15. Vivace was treated for a left eye ulcer in a box located at Kilmarnock Lodge and post-treatment of an additional 30ml of oral Flunixin Paste was left onsite to be administered over three doses to Vivace.

16. 27 December 2023 was within the four-day withholding period for Karman Line’s Raceday. It is understood that around the time of the treatment of Vivace’s eye ulcer and administration of Flunixin, Karman Line had temporarily occupied the adjoining stall to Vivace.

17. The stalls in question were separated by bars along the top of the adjoining wall, which would allow the potential for the horses to come into contact with each other.

18. The RIB undertook a further interview of the Kilmarnock Lodge Foreperson, who continued to deny giving Karman Line an oral paste dosage of Flunixin, either intentionally or accidentally.

19. Advice was sought by NZTR Chief Veterinarian Dr Andrew Grierson, regarding Flunixin, who advised that the NZ Veterinary Association provides guidance to its members outlining faecal and urinary contamination of the environs, especially in bedding in horse stalls that may result in prolonged detection times for horses under medication, and this includes substances such as Flunixin.

20. Wexford Stables consequently confirmed there was a possibility that Karman Line may have been housed in a stall onsite that had previously been occupied by Vivace. The Respondents sought that a B sample be independently tested. The testing was undertaken in Western Australia by Racing Chemistry Chem Centre. Racing Chemistry Laboratory confirmed that the analysis of the B sample showed the presence of Flunixin at a concentration of 7ng/ml being in excess of the regulatory limit.

RELEVANT RULES

21. r 804(2) of the Rules provides:

804(2)

When a horse which has been brought to a Racecourse or similar racing facility for the purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules.

22. The Penalty for this offence arises under r 804(7) and r 804(8) of the Rules:

804(7)

A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (5A) or (6) of this Rule shall be liable to:

(a) be disqualified for a period not exceeding five years; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $25,000.

804(8)

Any horse connected with a breach of sub-Rule (2) or (3) or (4) or (5) or (5A) or (6) of this Rule shall be, in addition to any other penalty which may be imposed, disqualified from any Race or trial to which the Third Appendix hereto applies and/or be liable to a period of disqualification not exceeding five years.

(a) If a Stipendiary Steward is satisfied following the outcome or analysis of the exercise of any powers in Rules 208(c) that a horse has had administered to it or has had present in its metabolism a Prohibited Substance, as defined in Part B of Prohibited Substance Regulations, then the Stipendiary Steward may declare the horse ineligible to start in any Race or trial to which the Third Appendix hereto applies for a reasonable period (taking in account the nature of the Prohibited Substance administered or which is or was present), such period to be determined by the Stipendiary Steward following consultation with a Veterinarian; and

(b) Any horse connected with a breach of sub-Rule (6) in relation to clause 8 of Part B of the Prohibited Substance Regulations may not be trained (and is ineligible to start in any Race or trial to which the Third Appendix applies) for a period of 12 months from the date the relevant Tribunal delivers its written decision (except that if the horse is less than two years old at the time the written decision is delivered then the 12 month period shall commence on the day that horse turns two years old).

INFORMANT’S SUBMISSIONS

23. Mr Carr, for the Informant, acknowledges that the Respondents and their employees have been cooperative throughout the investigation.

24. The Informant also notes that the Respondents have a total of six previous breaches of the Prohibited Substance Rule across six different races between February and March 2016, which resulted in total fines of $51,750.

25. In relation to the present matter, the Informant submits that any penalty must have particular regard to levels of sentencing – namely that penalties are designed to punish offenders for their wrongdoing but are not meant to be retributive in the sense that punishment is disproportionate to the offence. Further, in the Racing context, it is extremely important that a penalty has the effect of deterring others from committing similar offences. Lastly, the penalty should reflect the disapproval of the Adjudicative Committee for the behaviour in question.

26. Mr Carr referred the Adjudicative Committee, to previous decisions involving Flunixin (RIU v Barron [11/2018], RIU v Evans [05/2017] and RIU v Neal [05/2015], which while some years ago, those cases resulted in fines in the region of $2,000-$5,000.

27. Mr Carr submits that it is an aggravating factor that the Respondents, as a Training Partnership, have six previous historic breaches of the Prohibited Substance Rule for Cobalt across six different races in February and March 2016. In mitigation, the Informant notes that the Respondents have cooperated fully with the investigation and admitted the charge at the earliest opportunity.

28. In addition, the Respondents have extensive history and success as a Training Partnership in the Thoroughbred Racing Industry, both in NZ and overseas.

29. Mr Carr submits that it is accepted that there were no sinister intentions in relation to the positive result, and it is the Informant’s position that the cross-contamination has occurred as a result of negligence on behalf of the Respondents in not undertaking a separation of the two horses concerned in accordance with NZ Veterinary Services Guidelines.

30. It is further noted by Mr Carr that Mr Scott has strongly acknowledged the need to improve systems for the recording of treatment records to avoid potential cross-contamination in the future.

31. In terms of penalty, Mr Carr notes that the Thoroughbred Racing Penalty Guide, which came into effect on 1 February 2023, identifies a starting point for Prohibited Substances for a first offence of an $8,000 fine and a second offence of two years’ disqualification and a fine of up to $10,000.

32. It is submitted by Mr Carr that the Respondents ought to be given credit for the manner in which they have conducted themselves during the investigation and their admission of the breach at first opportunity, however that must be weighed against the legal precedent that Trainers have absolute liability for presenting their horses free of any Prohibited Substances, liability independent of fault.

33. The Informant does not seek disqualification in the circumstances, but suggests that $10,000 is an appropriate starting point for any penalty. In addition, the RIB seeks costs in relation to analysis of the B sample.

RESPONDENT’S SUBMISSIONS

34. Written submissions were provided by the Respondents highlighting that they are incredibly disappointed at the situation that has arisen and noting that they are committed to conducting Wexford Stables according to the highest standards.

35. By way of explanation, the Respondents highlighted that they did not appreciate the potency of Flunixin to stay around in a stable situation, until becoming aware of Dr Grierson’s advice.

36. The Respondents also note they have taken time to discuss with Dr Grierson, improvements around their practices around veterinarian treatment in the stable and have upgraded practices and staff directions as a result.

37. The Respondents highlight it is important that the situation be treated on its own facts, and connection should not be drawn with the Cobalt situation that arose in 2016, which is attributable to water troughs shared with cattle yards.

PENALTY DECISION

38. Following consideration of the background facts and submissions of the parties, the Adjudicative Committee has determined that a fine of $8,000 is an appropriate penalty in this case.

39. In reaching this decision, the Adjudicative Committee has carefully considered guidance from the Penalty Guide, together with the cases referred to by the Informant, as well as the background facts.

40. The Adjudicative Committee agrees with the submission of the Respondents, that the circumstances which have arisen here are distinguishable from those which arose in 2016, nevertheless must have regard in a general sense to the fact that this is not the first penalty the Respondents have had for offences of this nature.

41. The Adjudicative Committee has had particular regard to the level of culpability and agrees with the submissions of both parties that what has occurred here is in the nature of negligence and cannot in any way be described as deliberate administration.

42. That being said, as the Informant has noted, the Respondents have an absolute obligation to be familiar with the Rules, in particular the requirements and risks associated with day-to-day operational duties and the administration of therapeutic treatments and use of substances that are, or may be, prohibited under certain circumstances.

43. The Adjudicative Committee notes the acknowledgement by the Respondents to this, and the steps that the Respondents have taken to review and revise their stable operations accordingly to mitigate any future risk of contamination of this nature occurring.

44. In terms of mitigating factors, the Adjudicative Committee has had regard to the admission by the Respondents of the charge at the first available opportunity, their cooperation with the investigation and that the Respondents have taken steps to ensure that these circumstances do not arise again.

45. In relation to aggravating factors, the Adjudicative Committee considers that offences involving Prohibited Substances must be treated as serious matters, noting in particular the comments of the Appeals Tribunal in RIU v L, that disciplinary sanctions are designed to protect the profession, public/industry and those who are to deal with the profession.

46. Accordingly, the Adjudicative Committee considers the period of any disqualification, which it agrees is not appropriate in this instance, and the starting point for any fine is in the range of $10,00, having regard to the factors outlined, the Adjudicative Committee considers a 20% reduction of that starting point is appropriate, resulting in a fine of $8,000.

47. Additionally, with no dispute as to the presence of the Prohibited Substance, pursuant to Rule 804(8) of the Rules, it is also appropriate that KARMAN LINE is disqualified from Race 7 of the Stella Artois 1400m at the Auckland Thoroughbred Racing Meeting at Pukekohe Park on 1 January 2024.

COSTS

48. The Informant seeks costs of $3,569.83 for analysis of the B sample.

49. The Adjudicative Committee considers it appropriate that costs be imposed against the Respondents for that additional testing, which was undertaken at the Respondents’ request.

50. As the matter was determined on the papers, no Adjudicative Committee costs are imposed.

FINAL RESULT

51. The Respondents are fined $8,000.

52. The Respondents are ordered to pay costs of $3,569.83 for the B sample.