Non Raceday Inquiry – Written Reserved Decision dated 21 June 2023 – Sheryl Wigg

1. A penalty hearing took place on Tuesday 16 May 2023, commencing at 10am at Jetpark Hotel, Auckland.

2. The Adjudicative Committee (“the Committee”) reserved its decision.

INTRODUCTION

3. The Respondent, Ms Wigg, is a licenced trainer under the NZ Rules of Harness Racing (“the Rules”).

4. Ms Wigg faces three charges under the Rules:

a. A15915 – Administers “Getn Wiggy Withit”

That on 16th July 2021 at 111 Boord Crescent, Kumeu, Ms Wigg did administer to “Getn Wiggy Withit”, which was entered in Race 4 at the Auckland Trotting Club Meeting at Alexandra Park that evening, a substance by way of oral syringe, in breach of the NZ Harness Racing Rule 1004C(1)(b) and subject to penalties pursuant to Rule 1004D.

b. A15916 – Administers “St Michel” / Provides Feed that had alkalising agent added to it, as an alternative

That on 16th July 2021 at 111 Boord Crescent, Kumeu, Ms Wigg did administer to “St Michel”, which was entered into Race 6 at the Auckland Trotting Club Meeting at Alexandra Park that evening, a substance by way of oral syringe, breach of the NZ Harness Racing Rule 1004C(1)(b) and subject to penalties pursuant to Rule 1004D.

That on 16th July 2021 at 111 Boord Crescent, Kumeu, Ms Wigg did administer to “St Michel” which was entered into Race 6 at the Auckland Trotting Club Meeting at Alexandra Park that evening, a feed that had added to it an alkalising agent, in breach of the NZ Harness Racing Rule 1004C(3) and subject to penalties pursuant to Rule 1004D.

c. A15917 – Administers “Happy Place” / Provides Feed that had alkalising agent added to it, as an alternative

That on 16th July 2021 at 111 Boord Crescent, Kumeu, Ms Wigg did administer to “Happy Place” which was entered into Race 7 at the Auckland Trotting Club Meeting at Alexandra Park that evening, a substance by way of oral syringe, in breach of the NZ Harness Racing Rule 1004C(1)(b) and subject to penalties pursuant to Rule 1004D.

That on 16th July 2021 at 111 Boord Crescent, Kumeu, Ms Wigg did administer to “Happy Place” which was entered into Race 7 at the Auckland Trotting Club Meeting at Alexandra Park that evening, a feed that had added to it an alkalising agent, in breach of the NZ Harness Racing Rule 1004C(3) and subject to penalties pursuant to Rule 1004D.

5. A teleconference was convened on 31 March 2023, Mr Dale confirmed admission of the charges, on behalf of the Respondent, and a penalty hearing was set down.

6. The Respondent’s attendance at the penalty hearing was excused for personal reasons.

7. By way of background, this matter was previously heard by an Adjudicative Committee on 17 February 2022, and a penalty imposed of 19 months disqualification.

8. The decision of that Adjudicative Committee was appealed to the Appeals Tribunal of the Racing Integrity Board on 19 May 2022, in which the Tribunal dismissed the appeal.

9. The Respondent subsequently filed an application for judicial review in the High Court, and sought a stay of the penalty (Wigg v Racing Integrity Board [2022] NZHC 1224). The application was heard on 15 August 2022.

10. Peters J released a decision (Wigg v Racing Integrity Board [2023] NZHC 497) on 14 March 2023, which granted the application and remitted the matter back to the Racing Integrity Board “(the Board”) for reconsideration. As a result, the Board appointed this Committee for a rehearing of the charges.

11. Following the teleconference and the confirmation of the admission of the charges, the penalty hearing proceeded de novo.

BACKGROUND

12. The summary of facts is not disputed, and no further evidence was called at the hearing.

13. At about 3:40pm on Friday 16 July 2021 the Respondent was at her training premises at 111 Boord Crescent, Kumeu, Auckland.

14. The Respondent collected “Getn Wiggy Withit”, “St Michel” and “Happy Place” from their paddock and tethered the three horses in front of boxes in the stable block of the property.

15. The Respondent then prepared a jug or jugs of a brown/orange paste mixture which she drew up into a number of previously used oral syringes.

16. The Respondent administered the paste orally by syringe to each of the three horses.

17. At around 4:45 pm, RIB Investigators observed the administration of the paste to “Getn Wiggy Withit”. The Respondent was observed by the RIB Investigators who entered the property and spoke with her.

18. The Respondent was initially cooperating and stated that she administered a B Boost to “Getn Wiggy Withit” as he gets a bit worked up before a race, and that she thought it would help him get through the race and recover and stated I was really pushing for that $30,000 race for the maiden and he didn’t quite eat up last night and this morning, so I thought I might just give him a bit of, you know, that’s the only reason.

19. The Respondent later admitted it was not a B Boost that she had administered, rather it was a paste made up of turmeric (2 tablespoons), glucose (2 tablespoons) and approximately 100mls of water.

20. When asked what the purpose of giving the turmeric was, rather than another substance, because it must have some benefit, the Respondent replied I don’t remember.

21. Investigators observed a significant amount of a brown/orange paste on the ground around “Getn Wiggy Withit”. Similar brown/orange paste was detected on the ground under where “St Michel” and “Happy Place” were tethered. All three horses had the same brown/orange staining around their mouths.

22. In response to further question as to whether she had orally administered the same paste to “St Michel” and “Happy Place”, the Respondent stated that she had only administered the paste to one horse.

23. The Respondent then walked away from the interview and made a phone call. The Respondent was heard to say to the person on the phone how far away are you and don’t f***g yell at me. Eventually the call concluded, and the interview continued while the Respondent was putting covers on the horses.

24. The Respondent then stated that the traces of paste around the mouths of “St Michel” and “Happy Place”, were the result of her adding the paste to a bucket containing molasses which both the horses had drunk. When advised by the RIB Investigators that if this was the case, it still amounted to race day administration, the Respondent replied as far as I knew, you were allowed to give them a drink of molasses or f***ing glucose. It’s only glucose, it’s not a substance as your saying.

25. Evidence was removed from the property, including multiple recycled oral syringes, at least one of which had been used to administer “Getn Wiggy Withit”, along with syringes that had been recycled and contained brown/orange paste. The contents were analysed by the NZ Racing Laboratory to determine the elements of the paste.

26. The racing analysts determined that the paste contained a mix of curcumin which is present in turmeric and pepperin, an alkaloid found in black pepper. Curcumin has been reported, although not verified by peer reviewed science to have anti-inflammatory properties.

27. The paste is an alkalising agent due to having a high pH level. Alkalising agents are not permitted to be administered within one clear day of a race, because they can raise the pH of the horse’s blood, which delays the onset of muscular fatigue.

28. Each of the three horses was swabbed by an RIB Swabbing Official, and analysed for the presence of prohibited substances, and none were detected. The swabbed samples were not analysed for pH levels as, by the time Investigators became aware of the elevated pH levels, the swabbed samples were unable to be tested.

29. The three horses were scratched from their respective races.

30. The Respondent’s explanation was that “St Michel” and “Happy Place” had drunk the paste rather than having administered it by oral syringe. This resulted in the laying of alternative charges for providing an alkalising agent by way of any feed.

31. The Respondent has been involved in the harness racing industry for a number of years and does not have any previous breaches of the administration or the one clear day rule.

INFORMANT’S SUBMISSIONS AS TO PENALTY

32. Mr Dow started by acknowledging the background to the proceeding, and submitted that the judgement of Peters J does not assist matters, and should be placed to one side for the purposes of the Committee’s determination.

33. It is the position of the Informant that 19 months was an appropriate penalty derived from the starting point of two years and the Informant does not resile from that position.

34. Mr Dow suggests that an underlying rationale for the review decision was an analysis of what Peters J referred to as comparable cases, which Her Honour was unable to reconcile with the penalty imposed on the Respondent.

35. It is suggested by Mr Dow that the distinction in comparable cases is readily apparent, being the distinction between presentation offences and offences involving administration.

36. It is noted a presentation offence involves strict liability, in that all it requires is it be proved that a person responsible for a horse presented it for a race with a prohibited substance in its system, it does not require proof that the person presenting the horse was responsible for that substance being in the horse’s system.

37. In assessing the penalty for presentation it is not appropriate to treat the Respondent as being responsible for the substance being in the horse’s system. Any penalty proceeds on the basis that the Respondent, while not personally at fault, failed to take all care to ensure the horse was not presented for a race with a prohibited substance in its system.

38. In contrast, an administration offence requires the Informant to prove that the Respondent was responsible for the horse receiving the prohibited substance – a person who is found liable for an administration offence has been found to have deliberately administered the substance to the horse.

39. Mr Dow notes that the majority of the cases referred to by Peters J were presentation offences. While Mr Dow acknowledges that the Luxton (RIB v Luxton) case, noted by Peters J, was a case involving administration, Mr Dow submits it is factually distinguishable and of no assistance to the Committee.

40. Reference to the McGrath (RIB v McGrath) and Alford (RIB v Alford) cases involve more serious offending, relating to the administration of prohibited substances, and that is reflected in the level of penalty. Mr Dow highlights that this is illustrative of the robust approach that is taken by Adjudicative Committees towards administration offending. Mr Dow further contends that McGrath and Alford support the starting point advanced by the Informant in this case.

41. Mr Dow challenges the inference that there is uncontradicted evidence that the Respondent took the steps she took for animal health reasons only and believed the substance to be a feed supplement.

42. In support of this, Mr Dow invites the Committee’s inference that the Respondent was hoping to provide a benefit to the horses, noting in particular the substance was administered three hours before a race, administered only to horses racing that day, and that immediately after being confronted about what she was doing, the Respondent lied about it.

43. Mr Dow further highlights that the starting point of 18 months disqualification adopted by the original Adjudicative Committee was consistent with the recommended starting point set out in the JCA Penalty Guidelines for a first administration offence.

44. Mr Dow submits the guidelines provide transparency for the industry and the public and a degree of certainty in adjudication without undermining the ability of the Committee to exercise its discretion to adopt appropriate penalties in individual circumstances.

45. Reference is drawn by Mr Dow to the importance that the industry is held to high standards and notes the special status and social licence the racing industry holds, and the importance that it be free of any reputation for corruption, and highlights that the Committee should attempt to impose high standards.

46. Mr Dow submitted at hearing that punishment is a consequence of deterrence, penalties are imposed for a deterrent effect.

RESPONDENT’S SUBMISSIONS

47. Mr Dale for the Respondent, highlighted in his submissions that penalties ought to be applied in a manner consistent with the NZ Bill of Rights Act.

48. It was highlighted by Mr Dale that, in his view, racing stands out as the most severe in terms of disciplinary process and draws contrast with the treatment of other professional disciplinary bodies.

49. It was also suggested by Mr Dale that even the criminal courts, were more favourable, drawing particular attention to discharges without conviction where the consequences outweigh the seriousness of the offence.

50. It is advanced that the approach to sentencing and disciplinary proceedings was correctly summarised in the decision of Gordon J in Shousha v A Professional Conduct Committee (Shousha v A Professional Conduct Committee [2022] NZHC 1457). Mr Dale submits although the Racing Integrity Board has, from time to time, referred to the principles, the penalties are unduly weighted in the favour of deterrence and punishment and so have been misapplied.

51. Mr Dale submits that the penalty guidelines have no statutory force and are not binding on the Committee.

52. Mr Dale highlights that ordinarily sentencing guidelines are formulated by Judges not the prosecution and whether those guidelines are reasonable is a matter for the Committee. Mr Dale contends that the guidelines are too severe and ought not to be followed.

53. It is also suggested that the guidelines have not been adopted by the industry and I am referred to the affidavit of Christchurch barrister Mr Christopher John Lange (Affidavit of Christopher John Lange, dated 11 July 2022).

54. Mr Dale suggests what is being dealt with here was not a performance enhancing substance, was administered at the direction of a third party, and the Respondent was compliant when approached.

55. It is Mr Dale’s position that there is no inference available to the Committee of performance enhancement, and that hasn’t formed part of the evidence. Mr Dale observes any substance, even hydration/dehydration could be described as affording a benefit to a horse.

56. It is also noted that while the Board drew attention to the substance being administered to the three horses that were racing that day, Mr Dale suggests there is no evidence there were necessarily any more than three horses in the stable at the time, so cautions the Committee from taking any negative inference on that point.

57. In relation to reference to the Respondent lying to RIB Investigators, Mr Dale cautions the Committee against reading too much into that point and draws attention to the routine jury direction that people lie for all sorts of reasons – panic, fear and similar.

58. Mr Dale advances that, standing back, the Committee is dealing with a non-corrupt offence and further that the Respondent has not been charged with administering a performance enhancing substance.

59. Deriving guidance from the Shousha decision, Mr Dale points to four factors for the Committee’s consideration

a. The interest parties, being drivers and trainers, are entitled to be treated equally and fairly;

b. The owner’s trust and reliance on trainers;

c. The interest in curtailing corruption in the industry; and

d. Animal welfare

60. It is suggested animal welfare is a double-edged sword, because arguably, the treatment extended to the horses was good for the animals. Mr Dale suggests the primary tests are that the penalty applied is imposing the least restrictive penalty, deterrence and proportionality.

61. Mr Dale notes that rehabilitation ought to be a significant consideration on the Committee’s part, and notes there are not many women trainers in the industry.

62. In addition, the Respondent has struggled with health issues, a third party played a role in what occurred, the Respondent has a daughter whose welfare she is responsible for, and the Respondent is facing financial pressures. Mr Dale submits that these factors are compelling.

63. Mr Dale suggests, in terms of appropriate penalty, if the Committee accepts this was a non-corruptive offence, then the trend of authorities favours the imposition of a fine, noting in any event, a three-and-a-half-month period of disqualification has already been served. Mr Dale notes that six months was sought at the initial hearing.

64. In addition, Mr Dale proffers the Respondent’s willingness to forgo substantial costs claim arising in the High Court from the judicial review proceedings, something in the region of $30,000, which Mr Dale suggests is a substantial concession that would satisfy the interests of justice.

PENALTY

65. The Committee starts by addressing two matters which, while not directly relevant to the penalty hearing, do form part of the wider factual background and context of this proceeding and its progress to this point.

66. The first is relatively self-contained, which relates to composition of Adjudicative Committees and Appeals Tribunals and was a point that was a focus of the judicial review proceeding. The Board has taken interim steps to delineate composition of panellists on Adjudicative Committees and Appeals Tribunals moving forward, however notes, having done so does not amount to any admission of any process error in prior composition.

67. The more substantive preliminary matter pertains to the Board Penalty Guidelines, more particularly their standing purpose and effect in decisions of an Adjudicative Committee. Peters J observes that, under the Act, the responsibility of determining a penalty falls to the Adjudicative Committee at first instance, and it is for those bodies to determine and impose the penalty in any given case (Wigg v Racing Integrity Board [2023] NZHC 497 at [45]) . Peters J goes on to state that whether the Committee should be referring to any guide is a matter that would require careful consideration.

68. The penalty guide is in essence, the synthesisation of prior decisions. It is a helpful tool to Adjudicative Committees and Appeals Tribunals. It also serves as a useful resource to the wider industry and stakeholders as to the type of penalties which may be imposed for certain offences under the Rules.

69. It is for the individual Adjudicative Committee to impose a penalty in individual cases, having regard to the bespoke facts, guided by prior cases and striving for consistency and equality of treatment as an underlying principle.

70. The affidavit of Mr Christopher John Lange (Affidavit of Christopher John Lange, dated 11 July 2022), filed in respect of the judicial review is informative and provides useful contextual background to the history of the relevant rule and its subsequent amendments.

71. As both parties have acknowledged in submissions, the possible mischief in the rule is that, contained within its parameters, is a continuum of offending, ranging from the careless or negligent through to the deliberate end of the spectrum. This is complicated further by the range of substances involved, including both those that are prohibited, and those which are not prohibited substances, but nevertheless are unable to be administered within the window of the one clear day rule.

72. It falls to the Committee to determine where on the continuum the relevant offending falls against a backdrop of the wider principles of identifying and enforcing appropriate and professional standards, public protection and deterrence and animal welfare.

73. As was emphasised in RIB v L (RIB v L), the privilege of having a licence to work as a professional in any profession carries with it a duty to abide by the rules and ethics of it.

74. A point of discussion at hearing between Counsel and the Committee centred on the nature of the racing industry. Mr Dow advanced that the industry was unique in nature, drawing in particular on the confidence of the wagering market to fund industry operation, driving a focus on deterrence distinct to other professions, on the basis that without such deterrence, both the economic value and broader social licence of the industry is at peril. Mr Dale contends that the penalties are out of step with other professions in their punitive nature and that similar analogy as to social licence, economic factors and other considerations could be drawn for practically any profession to a certain extent.

75. Both points are fair ones, and the Committee considers it is incumbent on any Adjudicative Committee to bring to any penalty decision an approach where deterrence is a significant factor for the reasons Mr Dow outlines, however at the same time ensuring that such focus on deterrence does not overshadow other relevant factors that ought to be weighed up in the Committee’s deliberations.

76. In terms of aggravating factors, the pre-eminent one recognised by the Committee is the need to uphold and maintain high standards and expectations of trainers, to maintain the integrity of the sport of racing and its industry, and to protect the participants in the sport, industry and the public. For that reason, deterrence remains a primary consideration which underpins the Committee’s approach. Also of significance is the fact that this offending involved three separate horses entered to race on the day concerned, albeit the administration was, it would appear, relatively contemporaneous.

77. Lastly, the Committee notes the Respondent’s initial engagement with RIB Investigators and the inaccurate information initially provided. The Committee has had regard to the surrounding circumstances of this engagement, and while by no means excusable behaviour having regard to other evidence before the Committee, including the Respondent’s health and wider pressures she was under at the time, accepts these go some way to providing an explanation and therefore afford this factor limited weight.

78. The Committee notes that it is unclear in the scientific evidence before it as to what, if any, performance enhancing qualities the substance may, or may not, have had, therefore is unwilling to draw inference in the circumstances, other than to note the substance, as verified by analysis, was not a prohibited substance.

79. In mitigation the Committee takes account of is the Respondent’s unblemished history, her character and personal, financial and health issues. The Committee has also had regard to the admission noting while delayed, there is an appropriate explanation for such delay.

80. The Committee considers it is appropriate that concurrent sentences are applied. The Committee is minded to treat the incident as essentially one event, and in the absence of any clear evidence as to the horses at the stable at the time, is unable to draw inference that the three horses that were to race were selected to the exclusion of others.

81. Having regard to the above, the Committee considers that disqualification remains the appropriate penalty for administration offending.

82. The Committee notes that this is an administration offence, rather than a presentation offence, which is a valid and relevant distinction Mr Dow has highlighted to the Committee in submissions. There are clear policy reasons for the one-day rule being in place, and the significance and reliance on it by the industry is reinforced by the amendment to that rule in 2018.

83. Against that, the individual circumstances of the offending need to be considered. The Committee notes the substance was not a prohibited substance, as we have outlined above its performance enhancing abilities remain unclear, and the offending is in the nature of, to use Mr Dale’s terminology, a non-corrupt offence.

84. The nature of the offending, in the Committee’s view, falls closer to negligent, or careless offending on the continuum of the offences contemplated by the relevant rule. For those reasons, the Committee determines that no uplift from the starting point is appropriate.

85. For those reasons the Committee sets a starting point in penalty of twelve months.

86. Having regard to the mitigating factors in regard to the principles in Shousha, particularly those of rehabilitation, the least restrictive penalty and ensuring the penalty is reasonable and proportionate, the Committee allows a discount of three months.

87. Accordingly, the Respondent is disqualified for a period of nine months (274 days).

88. The Committee, having determined that a disqualification remains the appropriate penalty for an administration offence rather than a fine, the point becomes somewhat moot. However, in relation to the proposal that the Respondent forego claim for costs arising in the High Court in lieu of penalty in this jurisdiction the Committee considers this would not be a proper exercise of the Committee’s powers.

89. While acknowledging circumstances where such a situation would arise are rare, such approach runs the risk of the Committee being party to a contra-type arrangement, would not be appropriate. Further, such approach would be contrary to ensuring equality of treatment of all licensees that appear before it.

90. In the Committee’s view its function is to apply the penalties within the ambit of its jurisdiction without regard to matters of this nature which are properly resolved in their own jurisdiction, or between the parties.

91. The Committee accepts that it is reasonable that the period of disqualification already served (102 days) be taken into account.  Therefore, the net result is a period of 172 days commencing on 21 June 2023 and expiring on 10 December 2023.

COSTS

92. Given the procedural journey of this matter, it has presented several issues from a cost perspective that were traversed in some detail at hearing.

93. Costs were imposed in the original Adjudicative Committee decision and remain due. Therefore, in the circumstances the Committee has determined that it is appropriate that costs lie where they fall for the purpose of this hearing.

94. The parties agreed at hearing that costs arising from the judicial review proceeding are properly a matter for the High Court to determine.

95. The remaining issue pertains to the issue of costs in the context of the Appeals Tribunal hearing. This issue arises from the matter being remitted from the High Court to this Adjudicative Committee to hear the matter de novo at first instance.

96. These particular circumstances present a somewhat novel issue for the Committee and in the circumstances the Committee considers the proper way forward is that if the Respondent wishes to pursue this point, that submissions be filed by the parties within 15 working days as to the question of costs arising in the Appeal’s Tribunal, and this Committee will issue a jurisdictional decision with further directions as appropriate on that point.