Non Raceday Inquiry – Written Reserved Decision dated 23 May 2024 – Jack Johnson

BACKGROUND:

Information No. A16933, filed by Senior Racing Investigator, Simon Irving, alleges that the Respondent, Licensed Trainer, Jack Johnson, as the Trainer of the Greyhound, BIG TIME HEAVEN, failed to present the Greyhound to compete in Race 3, Happy Birthday Dave Robbie PBD, at the meeting of Christchurch Greyhound Racing Club held at Addington Raceway on 11 March 2024, free of the Prohibited Substance, Arsenic, at a level of greater than 1600 ng/ml, being over the threshold of 800 ng/ml, being an offence under the provisions of Rule 141(1)(a) and 141(4).

THE RULE:

Rule 141 provides as follows:

(1)  The trainer or other person in charge of a greyhound:

(a)  nominated to compete in an Event; must present the greyhound free of any   prohibited substance.

(3)  The trainer or person in charge of a greyhound presented contrary to subrule (1) of this rule shall be guilty of an offence.

(4)  A greyhound presented for an Event in circumstances where subrule (1) of this rule has been breached must be disqualified from the relevant Event and from receiving any benefit derived from the relevant trial, test or examination.

THE FACTS:

Mr Irving presented the following agreed Summary of Facts:

Introduction

1.  The Respondent, Jack Johnson, is the holder of a Public Trainer’s Licence issued by Greyhound Racing New Zealand (GRNZ). He is 19 years old and has held a Trainer’s Licence for 18 months.

2.  GRNZ introduced new Prohibited Substance Rules, including Arsenic (800ng/mL) and Cobalt thresholds, on 1 October 2021. The changes were published by way of an advisory to participants on the GRNZ Website and in the August 2021 “On Track” magazine.

Circumstances

3.  On 11 March 2024, the Greyhound, BIG TIME HEAVEN, won Race 3 – the Happy Birthday Dave Robbie PBD – at the Christchurch Greyhound Racing Club Meeting at Addington Raceway.

4.  At the time of the race, BIG TIME HEAVEN was a 4yo old bitch, owned by N & R Shrimpton and J Hill and trained by Mr Johnson. The Greyhound won a stake of $1,380.

5.  BIG TIME HEAVEN was post-race swabbed (#190423) and, on 23 March, the Eurofins ELS Limited Laboratory issued an Analytical Report detailing the sample had screened with an Arsenic level of 2420 micrograms per litre of urine (ug/L).

6.  The sample and control were sent by NZ Racing Laboratory Services (NZRLS) to Racing Analytical Services Limited (RASL) in Melbourne, Australia for the purpose of confirmatory analysis.

7.  Arsenic is a naturally occurring trace element that is normally present in Greyhounds at very low levels, as a result of a normal dietary intake. An excessive amount of Arsenic has been shown to influence the cardiovascular system (GAR 1) and therefore is a Prohibited Substance as per the GRNZ Prohibited Substance Regulations when present in a sample at concentrations above 800 ng/mL that which would naturally occur through routine nutritional sources.

8.  On 2 April, Mr Johnson was interviewed at his mother’s property in Sefton and advised of the initial screening Arsenic result.

9.  He immediately explained that BIG TIME HEAVEN was a chronic “chewer” and directed Investigators to her kennel, which showed clear evidence of the Greyhound having eaten a significant amount of its plywood housing and some tanalised fencing timber.

10.  Treated timber is known by Investigators to contain Copper Chrome Arsenate (CCA), a wood preservative used to protect against rot and pests.

11.  Samples of wood from the housing and the fence railing were analysed per “Timber Preservative Treatment Testing” and indicated levels of Arsenic consistent with the minimum New Zealand requirements for treated timber.

12.  A sample of seaweed powder, given as a dietary supplement, was also analysed and found to contain Arsenic. However, this was only given in very small quantities.

13.  A urine sample was obtained from BIG TIME HEAVEN, returning a reading of 248 ug/L.

14.  On 3 April RASL, issued a confirmatory Certificate of Analysis detailing the Arsenic at a level of greater than 1600 ng/mL, being the upper limit of the calibration range used.

15.  Inquiries revealed that other Johnson-trained Greyhounds have been Arsenic tested on 11 occasions since the introduction of the threshold, with levels between 10-68 ug/L, considered in the normal range.

16.  Two Arsenic positive cases in Greyhounds prompted GRNZ to post an advisory to all Trainers via their website on 23 December 2023:

Caution re Arsenic. Over the past year, there have been instances where greyhounds have been found to have high urinary arsenic levels in their systems, with the probable cause attributed to treated timber, which the greyhounds have been constantly licking or chewing. These cases highlight the fact that kennels made of treated timber could, through greyhounds chewing or licking them, cause elevated urinary arsenic levels. Trainers are advised to be cautious about this, especially if they have greyhounds who are more prone to chewing or licking.

17.  Mr Johnson stated that he had not read the advisory.

Conclusion

18.  It is highly probable that the level of Arsenic detected in BIG TIME HEAVEN is due to the dog chewing treated timber.

19.  Mr Johnson is liable, under Rule 140(1)(a) of the Rules of Greyhound Racing New Zealand, for failing to ensure the Greyhound raced free from Prohibited Substance.

20.  The RIB seeks disqualification of BIG TIME HEAVEN from the race concerned pursuant to Rule 141(1)(4).

21.  Mr Johnson has no previous breaches of the Prohibited Substance Rule or any other NRI charges in his 18 months as a Licensed Trainer.

GENERAL

Mr Irving highlighted that the present case is very similar to the recent cases involving Arsenic referred to in his submissions. The principal difference is the type of wood that was consumed by the Greyhound. In this case, the wood was plywood, which is softer and the Respondent, when interviewed, stated he was unaware that plywood would contain Arsenic. In the other cases, the Greyhounds were not chewing plywood, he said.

Tanalised treated timber tends to be a green colour. Some of the timber along the bottom of the kennel run was tanalised green-coloured timber, and there was evidence of a small amount of chewing of that. Plywood is not green, and Mr Irving said he was surprised to discover that plywood was also treated with CCA.

His research showed that plywood is often treated with Formaldehyde, which does not contain Arsenic. Also, he said, there is a difference between interior and exterior plywood. It was established that the plywood, in this case, did contain Arsenic.

The Respondent said that he had considered that the plywood would not be good for a Greyhound, but he was unaware that it contained any Prohibited Substance.

Mr Irving submitted that, as a possible aggravating factor, given the amount of wood that had been chewed in the dog’s kennel, the Respondent may have considered that to be a lot of wood, even though he is new to training, and perhaps asked questions of Senior Trainers.

Mr Irving said that he had experienced difficulty finding the advisory on the GRNZ Website, but GRNZ has published another advisory on its website on 1 May last. He believed that the original advisory had not been up for all that long. He had been informed that GRNZ also emails all of its Trainers, but the Respondent cannot recall having received such email, he said.

Given the Respondent’s inexperience, and being unaware that plywood contained Arsenic, then a suspended sentence would be appropriate, Mr Irving said.

DECISION

The charge having been admitted, it is deemed proved.

PENALTY SUBMISSIONS OF INFORMANT:

1.  Introduction

1.1  The Respondent, Jack Johnson, is a Licensed Public Trainer under the Rules of the New Zealand Greyhound Racing Association (GRNZ).

1.2  He is 19 years old and has held a Trainer’s Licence for 18 months, having previously been a Kennel Hand.

1.3  He trains from his mother’s property near Sefton.

2.  Offence

2.1  The Respondent has admitted a charge under Rule 141(1)(a) of the GRNZ Rules.

2.2  The details of the offence are contained in the agreed Summary of Facts.

2.3  The charge arises from the Greyhound, BIG TIME HEAVEN, returning a positive to Arsenic, a Prohibited Substance at a level of >1600ng/mL, being over the threshold of 800ng/mL, from a race meeting held at Addington on 11 March 2024.

3.  Penalty Provisions

3.1     The penalty provisions are contained under Rule 174(1):

An Adjudicative Committee may as it thinks fit penalise a person found guilty of an offence under the Rules by any one or a combination of the following penalties:

(a) a reprimand (sometimes known as a warning or caution);

(b) a fine not exceeding $10,000.00 for any one offence except a luring and baiting offence under rule 159.

(c) suspension.

(d) disqualification.

(e) cancellation of a registration or a licence, or in the case of a Club, its affiliation to GRNZ; or

(f) warning off

3.2  Rule 174(3) provides for:

Any part or portion of a penalty imposed may be suspended for a time and pursuant to conditions that an Adjudicative Committee thinks fit.

3.3  Per the GRNZ Categories of Prohibited Substances, Arsenic is included in Category 4 – all other substances that have the ability to improve or impact the performance of a Greyhound which lists a penalty starting point of 6 months disqualification and/or a fine of $5,000.

4.  Sentencing Principles

4.1  The principles of sentencing relevant to this charge can be summarised briefly as below –

• 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.
• In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.
• A penalty should also reflect the disapproval of the Committee for the type of offending in question.
• The need to rehabilitate the offender should be considered.

5.   Prohibited Substance Threshold

5.1  On 01 October 2021, GRNZ introduced an amendment to the definition of “Prohibited Substance” to create thresholds for several prohibited substances:

(iv) Arsenic at or below a mass concentration of 800 nanograms per millilitre in a Sample of urine taken from a greyhound will not breach the provisions of subrule (d) of this definition.

5.2  Arsenic is a naturally occurring trace element that is present in Greyhounds at very low levels as a result of normal dietary intake and environmental exposure.

5.3  An excessive amount of arsenic has been shown to have an effect on the cardiovascular system and therefore is a prohibited substance when present in a sample at concentrations well above that which would naturally occur through routine nutritional sources.

5.4  Testing undertaken in NZ since 2021 has revealed that the average level of Arsenic in greyhounds is approximately 60ng/mL.

5.5  Arsenic over 800ng/mL in a race day sample is, prima facie, a breach of the Rules.

6.  Comparable Cases

6.1  There have been two recent GRNZ Arsenic positives since the introduction of the 2021 threshold:

RIB v M CLARK (19.12.2023)

Trainer C charged with two breaches of the threshold from the same Greyhound, with levels of 908ng/mL and >1600ng/mL. The probable cause was also from the Greyhound chewing Copper Chromium Arsenate (CCA) treated timber. C was fined $800, all of which was suspended for 12 months per r174(3).

RIB v C WATSON (03.04.2023)

Trainer W charged with a breach of the threshold (1158ng/mL) under the old Rule 61.1 and penalty provisions. The source of the high level was also believed to be from the Greyhound licking the recently stained, CCA treated, wooden kennel floor. W was fined $1000.

6.2  As a result of these two cases, GRNZ posted an advisory on their website on 23 December 2023. It is unknown when the advisory was taken down but another “reminder” was posted recently on 1 May 2024. It is also unknown whether GRNZ notified Trainers via email. Mr Johnson stated that he had not seen the advisory on the website, nor had he received any email. He also stated that he was unaware of the circumstances of the two other cases and that he didn’t know that plywood contained Arsenic.

7.  Aggravating Features

7.1  Mr Johnson was aware that BIG TIME HEAVEN was a chronic chewer, as evidenced by the state of her kennel and, being a relatively inexperienced Trainer, should have sought advice about the possible ramifications of the Greyhound consuming that quantity of wood.

8.  Mitigating Features

8.1  Mr Johnson has admitted the charge at the earliest opportunity and has been cooperative and respectful with RIB Staff throughout the process.

8.2  Upon being advised of the screening result, he immediately relocated BIG TIME HEAVEN to a different kennel to ensure the risk of exposure to further Arsenic was greatly reduced.

8.3  He has no prior Non Raceday charges in his relatively short training career.

9.  Conclusion

9.1  It is highly likely that the source of the threshold breach is from the CCA treated timber located in the kennel in which BIG TIME HEAVEN was housed.

9.2  As the Trainer, Mr Johnson has a strict liability to ensure that his Registered Greyhounds are free from Prohibited Substances at all times.

9.3  The RIB submits that a $1,000 fine is appropriate, with the penalty wholly suspended for a period of 12 months. If a second relevant offence against GRNZ Rule 141(1) were to occur during the 12-months period, the $1,000 fine would be activated.

9.4  BIG TIME HEAVEN is required to be disqualified from her 1^st placing at Addington on 11 March pursuant to Rule 141(4).

9.5  No costs are sought.

SUBMISSIONS OF RESPONDENT

The Respondent said that he was unaware that the Greyhound chewing the timber in its kennel could lead to problems. As soon as he was advised of the positive swab and the likely cause of it, he relocated the animal to another kennel, a metal one that she could not chew. His other dogs are housed in wooden kennels that have a metal border to prevent them chewing. The party that he had secured the Greyhounds from, did not give him any warning to be aware of chewing.

He had worked for Trainers, Janine McCook, for 7 months and at Matt Roberts, for 6 months prior to that. He had also worked part-time for Trainers, Dave and Jean Fahey. None of those Trainers had chewers or warned him of the danger of chewers, he said. He had learned a lot from those Trainers, but not about chewers.

He trains from his mother’s property. While she helps him out with his Greyhounds, she is not experienced with those animals, he said.

PENALTY AND REASONS

1.  The penalty provisions are contained in Rule 174(1) and are set out in paragraph 3 of the Informant’s Penalty Submissions (above).

2.  The Respondent is a very young man, 19-years-old, and, as such, is quite new to Greyhound Racing. He trains a small team from the property of his mother at Sefton, some 37 kilometres from Christchurch. He no doubt has a promising future in the industry.

3.  He has told the Adjudicative Committee that he was unaware of the problems associated with Greyhounds chewing timber, and it has no reason to doubt that. He was also unaware, he says, of the two previous New Zealand cases involving Arsenic positives. It follows that, as he told the Adjudicative Committee, he had not seen the advisory, which was posted on the GRNZ Website on 23 December 2023. The Adjudicative Committee was told that the advisory did not remain long on the website and, significantly, it has been put up again quite recently. It is worth mentioning it here:

Everyone is reminded that there have very occasionally been instances where greyhounds have been found to have high urinary arsenic levels in their systems, with the probable cause attributed to treated timber which the greyhounds have been constantly licking or chewing. 

These cases highlight the fact that kennels made of treated timber could, through greyhounds chewing or licking them, cause elevated urinary arsenic levels. Trainers are advised to be cautious about this, especially if they have greyhounds who are more prone to chewing or licking.

4.  The Association is to be applauded for bringing this again to the notice of industry participants to, hopefully, avoid other Trainers presenting a Greyhound to race having ingested Arsenic.

5.  It seems clear that the reason for the positive result to Arsenic from analysis of the post-race urine sample, was the result of BIG TIME HEAVEN chewing the plywood housing of its kennel, and also some tanalised fencing. The photograph produced to the hearing, as an exhibit, graphically showed the extent to which the Greyhound had consumed that timber. Tanalised timber is known to contain Chromated Copper Arsenate, a wood preservative containing compounds of Chromium, Copper and Arsenic, in various proportions.

6.  It is fair to say that the likelihood of reoffending in similar fashion by the Respondent is very low.

7.  The principal aggravating factor is that, as pointed out by the Informant, given the Greyhound’s propensity for chewing the timber on its kennel, the Respondent ought to have been concerned enough to make enquiries as to any possible adverse consequences that may result from that. In addition, the Respondent, as a Licensed Trainer, had an obligation to keep abreast of industry news and advisories as issued by GRNZ on 23 December 2023. It is a salutary warning to all industry participants of the need to keep abreast of such matters.

8.  Mitigating factors are, firstly, the Respondent’s early admission of the breach and his cooperation with and attitude to RIB Staff during the course of the investigation. Secondly, he has averted the possibility of the situation being repeated with BIG TIME HEAVEN by relocating it to a different kennel. That would be expected of him. Finally, he has a clear record, albeit it in a short training career.

9.  The earlier case of RIB v Mikayla Clark (December 2023) referred to by the Informant is the most helpful guide to this Adjudicative Committee in deciding penalty in the present case. The facts of the case are similar to the present case. In Clark, the Adjudicative Committee assessed the offending to be low-level and determined that a suspended fine of $800 was the most appropriate penalty.

10.  Since the introduction of the new Rules as from 1 February 2023, an Adjudicative Committee has the following power contained in the Penalties” Rule, Rule 174. Sub-rule (3) provides:

“Any part or portion of a penalty may be suspended for a time and pursuant to conditions that an Adjudicative Committee thinks fit.”

11.  The Adjudicative Committee in the Clark case saw fit to avail itself of that provision, finding that the breach did not require a punitive penalty and added “there is more to be gained by adopting a prevention / educative approach, which is a more pragmatic way of resolution using the penalties available within the Rules.” This Adjudicative Committee echoes that sentiment.

12.  The Informant has submitted that a similar approach to the Clark penalty be followed in this case, and has submitted for a fine of not more than $1,000, suspended for 12 months as in Clark.

13.  The Respondent in this case is, arguably, more culpable than in Clark in that he ought to have been aware of the advisory in December 2023 and the two Arsenic cases that preceded his breach, and was negligent in not so being aware.

14.  The Adjudicative Committee has, taking that factor into account, determined that a fine of $1,000 is appropriate in this case. Such fine will be suspended for a period of 12 months, pursuant to Rule 174(3), on the condition that the Respondent does not commit any further breach of the Rules of GRNZ within that period, other than a minor Raceday incident dealt with under the Minor Infringement Scheme, in which case the fine will immediately become payable.

DISQUALIFICATION OF GREYHOUND

Consequent upon the disqualification of BIG TIME HEAVEN, the amended result of the race is as follows:

1st    April Baxter

2nd   Little Lord

3rd   Nick Baxter

4th   Figured It Out

It is ordered that the winning stake of $1,380 be repaid to Greyhound Racing New Zealand.

COSTS

The hearing took place on a Raceday and, accordingly, there is no order as to costs.