Non Raceday Inquiry – Written Reserved Decision dated 10 March 2023 – Alysha Waretini

THE CHARGE:

[1] Information A16857 alleges that on 21 April 2022 the Respondent, Licensed Kennel Hand, Alysha Waretini, as the person in charge of the Greyhound, OPAWA PIP, which ran in Race 8, at the Christchurch Greyhound Racing Club meeting at Addington Raceway, failed to present the Greyhound free of the Category 2 Prohibited Substances, Methamphetamine and Amphetamine, being an offence under the provisions of Rule 61.3 and punishable pursuant to Rules 63.1 and 61.4 of the Rules of New Zealand Greyhound Racing Association.

[2] The Applicant produced an Authority to Charge signed by Mr Mike Clement, Chief Executive of the Racing Integrity Board.

THE RULE:

61.1 The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance.

THE PLEA:

The charge and the Rule were read to the Respondent, who confirmed that the she understood the Rule and the nature of the charge.

EVIDENCE OF THE APPLICANT:

[3] Statements of Evidence by the following witnesses were produced by Counsel for the Applicant by the following witnesses. The evidence was admitted by consent.

(1) Susan Elizabeth Morrish, Swabbing Official

Ms Morrish stated that she obtained a post-race urine sample from the Greyhound, OPAWA PIP, on 21 April 2022 in the presence of the Respondent. The sample was packaged and sealed in front of the Respondent and placed in the fridge. At the end of the race meeting, all swabs for the day were placed in a courier bag, which was sealed and taken by the Stewards.

(2) Richard Alan Quirk, Stipendiary Steward

Mr Quirk stated that he had collected a courier bag containing the swabs from the meeting from the refrigerator in the swabbing office and had delivered the bag to the Courier Post Depot at Christchurch Airport to be couriered to New Zealand Racing Laboratory Services in Avondale.

(3) Robert Graeme Howitt, Official Racing Analyst and General Manager of NZRLS

Mr Howitt stated that the courier bag, containing 10 samples including the sample from OPAWA PIP, was received on 22 April 2022 with all seals intact. A sample of the urine was analysed for the presence of prohibited substances and screening analysis of the sample yielded results that indicated the presence of Methamphetamine and Amphetamine. Confirmatory analyses were undertaken and the results were evaluated and both substances were shown to be present in the urine sample.

(4) Carrie Anne Bach, former Operations and Compliance Manager, The Drug Detection Agency, Christchurch

She was requested to conduct “meth testing” on two vehicles at Ohoka on 17 May 2022 – a blue Holden Commodore CLZ192 and a black Toyota Hiace MMS 896. The vehicles were parked on the driveway next to the house at 319 Mill Road, Ohoka. She did three individual swabs from the steering wheel, driver’s side roof and passenger’s side roof in each vehicle. Six separate sample tubes were forwarded to Hill Laboratories in Hamilton for analysis. Finally, the witness stated that the analyses showed both vehicles showed slight traces of Methamphetamine but the levels detected were below the “cut off” of 1.5.

(5) Yu-Hsuan (Coco) Hsueh, Client Services Manager – Environmental Division for R J Hill Laboratories Limited (“Hill Laboratories”)

The witness stated that on 18 May 2022, six samples were received from TDDA, Canterbury/West Coast. The samples were given job numbers and allocated laboratory identification numbers. All samples were analysed for Methamphetamine, Amphetamine, Ephedrine and Pseudoephedrine. Two analysis reports were sent to TDDA setting out the results of the analyses and a summary of the method used.

[4] Evidence of Georgina Louise Murrow, Racing Investigator

(1) On 17 May 2022, she attended the property of Licensed Trainer, Lisa Waretini, and the Respondent, with Racing Investigators, Richard Carr and Oscar Westurland. New Investigator, Courtney Fox, was also present as an observer.

(2) She was met by the Respondent and was directed to the Trainer, Lisa Waretini. She explained to Lisa Waretini the reason for their presence and that they would try to establish the possible cause of the positive swab. She explained that TDDA had been authorised to take environmental swabs of anything the Greyhound may have contacted.

(3) Lisa Waretini identified two vehicles used to transport her dogs – a blue 2005 Holden Commodore CLZ192 and a 2006 black Toyota Super GL MMS896. She explained that her daughter, Alysha, had transported the dogs to the races on 21 April. Both vehicles were swabbed by a TDDA technician for the presence of Methamphetamine. The witness produced a laboratory report from TDDA.

(4) The witness said that the analysis of the swabs taken from both vehicles showed that traces of Methamphetamine were present in all three swabs which were obtained from the roof lining above both front seats and the steering wheel.

(5) The report concluded that it does not confirm the presence of Methamphetamine contamination – all levels indicated were below the contamination threshold (1.5ug/100cm²). The threshold for classification as “contamination” is considered against the NZS8510:2017 standard and 1.5ug/100cm² is the maximum acceptable level of Methamphetamine in an affected property after decontamination. The highest of the three traces from the Toyota was 0.15ug/100cm² from the steering wheel and from the Holden 0.08ug/100cm² also from the steering wheel.

(6) The Respondent was requested to provide urine and hair samples to potentially exclude her as a possible cause of the contamination. The Respondent provided both samples. Both were negative to Methamphetamine.

Cross-Examination of Georgina Louise Murrow

(7) Miss Thomas questioned Ms Murrow as to her experience, and as to her training for the position of Racing Investigator. She then questioned the witness as to the matter of consent to a hair and/or urine test. Ms Murrow also denied saying to the Respondent or the Trainer that they were not able to leave for the races until matters had been completed.

(8) The witness confirmed that consent had to be obtained before tests could be taken. She denied that the requirement to undertake drug testing was to endeavour to establish an administration offence. Miss Thomas asked the witness why it was decided to charge the Respondent. She explained the process to decide whether a person will be charged. The decision is made by the Chief Executive based on a recommendation by the Investigation Manager, based on the Summary of Facts. Miss Thomas asked the witness why, in this case, had a decision been made to charge two persons. Ms Murrow answered that there were two persons jointly responsible. The Respondent had been linked to Methamphetamine use and there had been evidence found in the vehicles. The witness was not able to answer whether the contamination was the result of contamination in the vehicle.

(9) Miss Thomas then returned to the issue of consent. She asked the witness how a person knows that he or she has the right to say “no”, unless that person is told that. The witness denied that she and the other Investigators had been “overbearing and unfair” on this occasion. Miss Thomas challenged the right of the Investigators to arrive unannounced. She alleged that the RIB practices were “unfair” and “egregious” and submitted that the Committee is able hear an abuse of process argument at this stage. There had been a lack of true consent in this case, she submitted. She was also challenging the decision to prosecute both the Trainer and the Respondent.

(10) Miss Thomas submitted that Ms Murrow was not a credible witness and was not being completely “forthright”.

(11) Ms Murrow confirmed that she had seen Angie Wilson, the third person tested, arrive at the property. Ms Wilson had been requested to attend by Investigator, Richard Carr. She was not aware what had been said to her, or whether it had been discussed whether or not Ms Wilson was a Licensed Person under the Rules.

(12) Ms Murrow accepted that the urine test would not have been able to establish whether the Respondent had used Methamphetamine on the raceday. The standard drug-testing kit provided would have tested for about five drugs, including Methamphetamine. It was not possible to request TDDA to test just for Methamphetamine.

(13) Ms Murrow said that, when advice of the positive test returned by OPAWA PIP was received, it was too late to go to the kennels to test the other dogs that had been in the vehicle that day. The Certificate of Analysis was received on 11 May 2022.

(14) Miss Thomas put it to the witness that there is a protocol in the GRNZ Rules for testing of licensed persons on raceday. The person to be tested was required to be informed as to the procedure to be followed. The licensed person was also entitled to contact the RIB for a copy of the procedure. Miss Thomas asked the witness why there should be a different procedure for testing on non-raceday. Ms Murrow repeated that she had asked the Respondent to agree to the tests and she had agreed. She was not aware that any particular procedure existed for testing at the Respondent’s home.

EVIDENCE OF THE RESPONDENT:

[5] Evidence of Alysha Janet Emily Waretini

(1) The witness is a Licensed Owner / Handler with GRNZ. She assists her mother in the training of Greyhounds. They have approximately 30 Greyhounds at their kennels. She is the one who mainly takes the dogs to the races.

(2) The RIB Investigators arrived at the property at about 8.15am. She was required to be at the races that day by not later than 10.30am. There were two Investigators, one of whom was Georgina Murrow. They introduced themselves and enquired as to the whereabouts of the Trainer, Lisa Waretini. The witness asked them if they had to do this now as it was raceday and they were very busy. Ms Murrow replied they would not be going anywhere if the matter was not sorted.

(3) The witness directed them as to where to find the Trainer. She joined them shortly after she had finished what she was doing. She did not know why the Investigators were there until she was asked to identify her signature on the swab card.

(4) She then returned to the house and it was then she saw the TDDA van. She was told that she and the Trainer were both to be interviewed and taken for drug tests. She was told she was to give a hair and a urine sample. She was struggling with what was happening and she was told to go to the van. She had been to the toilet shortly beforehand and was nervous and had difficulty providing a urine sample. There was a person in the van and a toilet. She felt that she had no privacy.

(5) During her interview, she was asked if any other person would have been in the van with her on the raceday. She told them that Angie Wilson helped her out from time-to-time. She was told the result of the urine test almost immediately.

(6) OPAWA PIP had been left in the van. She had not left the course with the dog in the van at any stage during the race meeting.

Cross-Examination of the Respondent

(7) The witness confirmed that she is licensed under the Rules of NZGRA and that she would have agreed to the conditions of her Licence(s). She reluctantly accepted that she was liable under the Rule but voiced her objection to how it was inconsistently applied. She was the first Handler to be charged. It was “unfair” that she should be charged.

(8) Angie Wilson was not at the races that day.

(9) She had admitted in an interview with Investigator, Georgina Murrow, that she had used Methamphetamine, but not for some time. She confirmed that was the truth. She has friends that are users of Methamphetamine, but she forbids the use of it around her. She does not carry out drug testing of their Greyhounds and she did not believe that any other Trainer did so.

(10) She was told that she had to submit to the drug tests and was not told she did not have to. She was “in shock” and believed that she should have been told that. She was in tears in the van, she said.

(11) Asked by the Adjudicative Committee, the witness said that she used the Toyota van to take the dogs to the races “ninety-five per cent” of the time. The Trainer would use the Holden if she needed to bring dogs or transport others back home.

[6] Evidence of Lisa Joy Waretini

(1) The witness was asked when she had acquired the two vehicles. Neither was a new vehicle. Many Greyhounds that had been transported in the vehicles had been swabbed and none had returned a positive swab.

(2) She had consented to the giving of the hair and urine samples for testing. She was told by the Investigators that they required a hair and urine sample and to go out to the van for that purpose. For 20-30 minutes, she had difficulty providing a urine sample and was told to drink. She had not been interviewed at that stage.

(3) Investigator, Simon Irving, came to the property and dropped off a copy of the decision in RIB v A Turnwald. On one visit, he advised the witness that both her and her daughter were to be charged. He explained that he believed that Alysha had left the racecourse and a friend had been invited into the vehicle and had smoked Meth. Counsel for the Applicant objected to that evidence on the grounds of hearsay. The same van has been used since that day to transport Greyhounds. Some of those dogs have been swabbed at the races and none has returned a positive swab to a prohibited substance.

(4) Cross-examined by Counsel for the Applicant, the witness stated that she had never used Methamphetamine, and no Greyhound trained by her had returned a positive swab. She confirmed that she really wanted to submit to the drug testing, as she had nothing to hide. She was aware of her daughter’s previous drug use and that she had friends who used drugs.

[7] Evidence of Simon Andrew Irving, Racing Investigator

(1) The witness was called at the request of Counsel for the Respondent to clarify something that was allegedly said by the witness to the Respondent when the RIB Investigators called at her property on 17 May 2022.

(2) The witness stated that he had not suggested to the Respondent that, on the raceday, she had left the Racecourse in the van and visited another person who had smoked meth in the van, before she returned to the Racecourse.

(3) The witness was asked by Counsel for the Respondent that, if the van was contaminated on that day and at very low level, how was it that OPAWA PIP was the only dog contaminated on that day. Mr Irving stated that the inference was that the dog tested positive to Amphetamine. Approximately one month later, there was Methamphetamine detected in the vehicle that was used to transport the dog on the day of the race after which it tested positive. The next evidence was that the vehicle that was used to transport the dog was tested and found to have Methamphetamine in it.

(4) The witness confirmed that he was not involved in the investigation or the decision to charge both the Respondent and the Trainer. The decision was discussed at management level, but did not involve the witness. He had formed an opinion which he may have passed on.

(5) The witness said that he had told the Trainer that the evidence supported both the Trainer and the Handler being charged and he told her that this was not the case in the Turnwald case, in which only the Trainer had been charged.

CLOSING SUBMISSIONS:

[8] Oral closing submissions were made by Counsel for both parties. At the conclusion of those submissions, Counsel for the Respondent was given leave to file written submissions to which Counsel for the Applicant was given leave to file written submissions in response. Those submissions are summarised:

Submissions of the Respondent

(1) Counsel for the Respondent set out a number of “factual matters” that were not in dispute and then made reference to “the law” with particular reference to the issue of consent and abuse of process.

(2) It was submitted that in this instance the powers by the RIB have been misused in a way that prevents justice being done.

• the Investigators had no lawful authority to enter onto the property
• the Respondent was advised she was not permitted to leave the property to attend the race meeting until the RIB had completed its process
• the Investigators failed to talk the Respondent through the procedure for testing
• the Respondent was led to believe that she was required to provide hair and urine samples and to provide an interview
• the Investigators undertook the samples without the informed consent of the Respondent
• the requirement to provide hair and urine samples may have led to a charge of administration which makes the need for proper consent even more vital.

(3) It was submitted that the Adjudicative Committee needs to have a broad oversight of the procedures adopted by the RIB:

• due to the nature of the strict liability charge it is virtually impossible to successfully defend a contamination charge
• there are contamination charges where charges are not brought. This case is the first in which the RIB has decided to charge two individuals
• the RIB through a contractual relationship has extraordinarily broad powers and should be required to act within those powers. Failure to do so is an abuse of power which can only be met by a strong statement from the Adjudicative Committee that those powers cannot be stepped outside.
• The integrity of the sport can only be properly protected when those responsible for “policing it” are held to account if they break the Rules.

Submissions of Applicant

The submissions on behalf of the Applicant are summarised as follows:

(1) An Adjudicative Committee is not often asked to dismiss a charge for abuse of process by investigative misconduct. There are no previous examples. In the criminal context, the Supreme Court has referred to such a step as “an extreme step which is to be taken in the clearest of cases”.

(2) It is firmly maintained by the Applicant that there has been no misconduct by the Investigators. The facts which the Respondent constituted misconduct were denied at the hearing by RIB witnesses.

(3) Even if the Adjudicative Committee should find there was a deficiency in the investigative procedure, that does not require the charge to be dismissed.

(4) The offence is one of strict liability and no defence has been articulated.

(5) In cases where an impropriety is found, and where other factors do not justify its admission, the remedy is typically for the Court to exclude the improperly obtained evidence, not the wholesale dismissal of the charge itself.

(6) In asking the Respondent whether she would agree to a drug test, the Investigators offered her an opportunity to exclude herself as the source of the dog’s contamination. She availed herself of the opportunity and produced a negative test. The suggestion that the drug test was offered to collect evidence to prove an administration offence is “nonsensical”.

(7) During the penalty hearing of the charge against the Trainer, Lisa Waretini, her Counsel repeatedly emphasised that her cooperation, including her eagerness to be drug tested, ought to be considered as a mitigating factor. Giving evidence for the Respondent, she gave evidence that she was “traumatised” by the process and felt she had been required to submit to testing. It was submitted that Lisa’s contradictory positions must necessarily colour the Adjudicative Committee’s assessment of the Respondent’s evidence. Ms Murrow’s evidence was of greater reliability on this point.

(8) Even in the absence of “informed consent”, the admission of the drug testing results has no detrimental effect on the Respondent but rather the negative results operate in her favour.

(9) If the Adjudicative Committee did not accept that the Respondent had not provided “informed consent” the appropriate remedy would be exclusion of that evidence, not dismissal of the charge. In any event, the Applicant does not rely on the results of the drug test to prove any element of the offence.

(10) It is a well-established principle that Investigators may enter onto private property to make inquiries of the occupants unless or until implied consent is revoked. There is no evidence that consent was revoked here. It cannot be said that the RIB’s entry onto the property in this case amounts in any way to an abuse of process.

(11) The Respondent’s claim that Investigator Murrow advised her that she was not allowed to leave the property until the RIB had completed its process was strenuously denied by Ms Murrow during the hearing, including under cross-examination. There is no evidence to substantiate that claim.

(12) No abuse of process has occurred in this case. The Respondent’s case is based on facts which are strenuously denied by the RIB.

REASONS FOR DECISION:

(1) The Respondent, a Licensed Handler with Greyhound Racing New Zealand, has been charged that as the person in charge of the Greyhound, OPAWA PIP, trained by her mother, Lisa Waretini, she failed to present that Greyhound free of the Category 2 Prohibited Substance, Methamphetamine. That substance was detected in a post-race urine sample.

(2) The Trainer has earlier admitted a charge of presenting the Greyhound and, following a penalty hearing, was disqualified for a period of 15 months.

(3) The Applicant produced written statements of evidence, which were not contested by the Respondent, from a number of witnesses to prove the elements of the offence:

• that the Respondent was the person for the time being in charge of the dog;
• that the Greyhound, OPAWA PIP, was brought onto Addington Raceway for the purpose of engaging in, and did engage in, a race; and
• that OPAWA PIP was found on testing, examination or analysis conducted pursuant to the Rules of GRNZ to have Methamphetamine present.

(4) The witness, Investigator, Georgina Murrow, was cross-examined at length by Counsel for the Respondent, Miss Thomas, concerning the visit by the Investigators to the Waretini Kennels on 17 May 2022 and, in particular, concerning the process around giving of hair and urine samples by the Respondent and her mother.

(5) The offence is one of strict liability – that is to say, the Trainer and, in this case, the person for the time being in charge of the Greyhound, are severally responsible for the presence of any Prohibited Substance in the Greyhound’s system, irrespective of how it came to be there, unless they can prove beyond doubt how it got there.

(6) The Respondent did not attempt to advance the “absence of fault” defence to the charge. Rather, Counsel for the Respondent has relied on an “abuse of process” defence, based, essentially, on the grounds that the Investigators had no lawful authority to enter the property and that, in any event, the drug testing on that day was illegally carried out for lack of informed consent.

(7) It was not established that there was any real reluctance, at the time, to submit to the drug testing, and there was no evidence of any undue pressure being exerted on the Respondent to submit to the drug testing, notwithstanding that the consent was not obtained by the process that Counsel for the Respondent submitted that it ought to have been. Furthermore, there was no evidence that the Respondent objected, or even questioned, whether she had the right to refuse the drug tests. It is more likely that she was agreeable to the tests, being confident that the results would favour her, which proved to be the case.

(8) The Adjudicative Committee accepts that the tests were carried out to try and establish the source of the contamination, and not to find an administration charge, as suggested by Counsel for the Respondent. The results of the tests were not required as part of the proof of this charge of presentation.

(9) The Adjudicative Committee is satisfied that the processes by which the RIB Investigators entered the property and requested the Respondent to submit the drug tests do not amount to an abuse of process, sufficient to amount to a defence, or even the Adjudicative Committee’s ordering a stay of proceedings. Neither has the Respondent established a total absence of fault on her part to provide a defence to the charge.

(10) The Applicant having proved the elements of the charge, and the Respondent having failed to prove beyond doubt how the Prohibited Substance came to be present, the Adjudicative Committee finds the charge proved.

DECISION:

The charge is found proved.

PENALTY AND COSTS:

The parties are invited to file penalty submissions, and submissions relating to costs. The Applicant’s submissions are to be filed within 7 days of the date of this decision, and the Respondent’s submissions in reply are to be filed within 7 days of the date of receipt of the Applicant’s submissions.