Non Raceday Inquiry – Written Reserved Decision dated 24 April 2025 – Derek Balle

INTRODUCTION

[1] Mr Derek Balle, the Respondent faces the following charge:

(a)  On Friday 7 February 2025 at Alexandra Park, Auckland having been required by a Racing Investigator to supply a sample of urine in accordance with Rule 212(1)(g) and 226(2)(d) of the New Zealand Rules of Harness Racing at a time and place nominated by them, he failed to comply with such a request and was therefore liable to a penalty imposed pursuant to Rule 1003(1) of the Rules.

[2] A teleconference was held on 25 February 2025. The Respondent was present with his representative Mr M Branch. Also present were Ms C Fox, Investigator Racing Integrity Board (RIB), and Mr D Dow, representing the RIB. Mr Balle confirmed that he wished to defend the charge and acknowledged that he understood the nature of the charge.

[3]      Following the teleconference, the following matters were agreed:

1. A Not Guilty plea was entered by Mr Branch on behalf of Mr Balle.
2. A hearing date and venue was set, namely 10am, 17 March 2025, Stewards Room, Pukekohe Racecourse.
3. Mr Dow and Mr Branch will continue dialogue with each other and should circumstances change, parties will advise the Adjudicative Committee.
4. Disclosure will be ongoing and will include any JCA or RIB Decisions that either party intends to rely on, during the course of the hearing. It is agreed and expected, that disclosure will be completed by 10 March 2025, inclusive of evidential statements/briefs, and other relevant material/documents.

[4] Due to the unavailability of a witness, the hearing date was subsequently altered to 10am on Tuesday 15 April 2025 at the Pukekohe Racecourse.

SUMMARY OF DECISION

[5] The Adjudicative Committee, after considering all the circumstances, the totality of the evidence and submissions both orally and in writing, found the charge proven on the balance of probabilities.

Unless there is any objection, for efficiency reasons and to keep costs at a minimum, it is proposed that the penalty be determined on the papers.   To that end, the Adjudicative Committee requires written submissions as to penalty and costs.

The Informant is to provide their submissions within 7 days of receiving this Decision and the Respondent to provide their reply in a further 7 days.   If, however, for any reason either party cannot meet this timeframe, leave for an extension should be made to the Adjudicative Committee for its consideration.

THE RELEVANT RULES

[6] The following HRNZ Rules are relevant to the charge.

Rule 512(2)(a) provides that:

Every driver commits a breach of these Rules who having been required under the Rules by a Stipendiary Steward or Racing Investigator or Adjudicative Committee to supply a sample at a time and place nominated by the Stipendiary Steward or Racing Investigator or Adjudicative Committee refuses or fails:

(a)  To comply with such a request.

Rules 314(7) & (8) provide that:

(7) Every licence issued to a driver shall contain, or if it does not contain shall be conclusively presumed to contain, a condition that the person to whom the licence is issued shall, whenever he is required to do so by a Stipendiary Steward or Racing Investigator, permit a sample to be obtained from him by, or under the supervision of, a registered medical practitioner or by an authorised person (at such time as shall have been nominated by the Stipendiary Steward or Racing Investigator).

(8) Every person who applies for a Driver’s Licence shall be deemed to accept all the conditions or restrictions imposed by or under these Rules and (without prejudice to the generality of this sub-rule) to be debarred from questioning or disobeying or taking any legal action against the Stipendiary Steward or Racing Investigator or against a Club, or any person who was at any material time a member thereof, arising out of or in connection with or as a consequence of a sample having been obtained from him by or under the supervision of a registered medical practitioner or by an authorised person pursuant to a requirement of a Stipendiary Steward or Racing Investigator.

PENALTY PROVISIONS

[7] The following penalty provisions are relevant to the charge.

Rule 1003(1) provides that:

A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1)113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:

(a)  A fine not exceeding $10,000.00; and/or

(b)  Suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c)  Disqualification for a period not exceeding 12 months.

NZ HARNESS CODE OF CONDUCT

[8] The NZ Harness Code of Conduct (the Code) came into force on 15 December 2023.  As a licence-holder the Respondent is bound by this Regulation.

The purpose of this Code is to:

1. Set a standard of conduct required by all participants in harness racing;
2. Ensure a clear understanding of what is expected and required in our conduct and behaviours to ensure a positive, healthy, supportive and professional working environment; and
3. Protect our sport, our people, and our reputation.

STANDARD OF PROOF

[9] The standard of proof in proceedings before an Adjudicative Committee shall be the balance of probabilities.

THE HEARING

[10] Mr D Dow appeared on behalf of the Applicant (RIB).

[11] Mr M Branch appeared on behalf of the Respondent, Mr Balle who was present throughout the hearing.

[12] Mr Dow presented evidence from four witnesses, namely RIB Racing Investigator Ms C Fox, TDDA Technician Ms T Pead, Senior Stipendiary Steward Mr S Mulcay and a letter from HRNZ Barrister Mr C Lange.

[13] By agreement, the statement of Mr Mulcay and the letter of Mr Lange were admitted by consent.  The statements of witnesses Ms Fox and Ms T Pead were taken as read, but they were present and available for further examination by Mr Dow and cross examination by Mr Branch.

[14] Mr Branch called Mr Balle as a witness and his evidential statement was also taken as read, but he was available for further examination by Mr Branch and cross examination by Mr Dow. Mr Branch also addressed the Adjudicative Committee on a number of issues concerning the legality of the approval of the testing laboratory by the HRNZ Board in 2014. He also raised questions about reasonableness of the testing procedure and the Rule under which Mr Balle had been charged (Rule 512(2)(a)).

[15] Both Mr Dow and Mr Branch provided the Adjudicative Committee with extensive opening submissions outlining their respective positions.

EVIDENCE FOR THE INFORMANT

[16] In his opening, Mr Dow submitted that the evidence would show that the charge is proven due to the three key elements of the offence having been established namely:

• That the Respondent is a Licenced Driver under the Rules;
• That the Respondent was required under the Rules by a Racing Investigator to supply a sample at a time and place nominated by the Racing Investigator;
• That the Respondent failed to comply with the request.

Witness Ms T Pead – TDDA Technician

[17] Ms Tatum Pead, a TDDA testing technician gave evidence in person. She confirmed that she was a NZQA Qualified collector pursuant to the AS/NZS 4308:2008 Standard (Collect specimens for drugs of abuse testing & participate in workplace Health & Safety) and had been working in the role of a drug testing technician for 27 months (2 years, 3 months).

[18] TDDA testing facilities (including mobile clinics) are an accredited laboratory pursuant to ISO 15189:2007 for the purposes of medical testing. All urine testing conducted by TDDA is performed pursuant to the AS/NZS 4308:2008 Standard.

[19] On Friday 7 February 2025, she attended the Harness Meeting at Alexandra Park, where thirteen persons had been selected for testing. The testing in question was due to take place between 4:30pm and 8:30pm. At approximately 8:20pm, she greeted a new donor to the mobile clinic. The donor identified himself as Derek Balle and confirmed his identity via a NZ Drivers Licence. She completed the relevant paperwork, and he signed the informed consent to advise that he understood the drug testing conditions.

[20] After completing the paperwork she advised that Mr Balle attempted to provide a sample which was unsuccessful. He stood by the toilet for approximately 3 minutes trying to provide a sample. He advised Ms Pead that he did not think he would be able to provide a sample, as he had recently gone to the toilet. It was explained that the mobile Testing Laboratory needed to leave site shortly, and he would need to present back to the van at 8:45pm at the latest.

[21] Ms Pead observed that while Mr Balle had been calm during the completion of his paperwork, he had become nervous when attempting to provide a sample.

[22] After speaking to Ms Fox, the testing time was extended to 8:45pm. At around 8:45pm, Derek Balle again presented to the van and, shortly after, he again advised that he could not provide a sample. On this second attempt, he stood at the toilet for approximately 5 minutes and was unsuccessful. Following this, Ms Pead spoke to Ms Fox and agreed to stay another 5 minutes in an attempt to allow Mr Balle to provide a sample. At 9:00pm, he had still not provided a sample, so he was advised that the testing had ended.

[23] Under cross examination, Mr Branch asked Ms Pead to explain the process for overseeing the taking of urine and the set up for the night’s testing. Ms Pead described that the tester stood beside (about a metre apart) the male giving urine who was standing over the toilet with a cup for the sample. The set up for that night was that she arrived at approximately 4.15pm and was ready by 4.30pm for testing. There were two vans present, with herself and a male being the two testers.

[24] Ms Pead reiterated that Mr Balle’s demeanour was that he had been calm when he came into the van, but became nervous when he was required to provide urine. She had suggested he walk around and relax, but Mr Branch suggested that telling someone to relax very rarely had the desired effect.

[25] Mr Branch asked why the male tester was not used and Ms Pead said she was available, and the male tester had been shutting down his van. Mr Branch then questioned, when had the option of a male tester been “taken off the table.” Ms Pead said Mr Balle never asked for, or requested a male tester, so as far as she was aware, it was never an issue.

[26] Mr Branch questioned Ms Pead as to whether she was aware of a medical condition known as ‘paruresis’ (shy bladder syndrome).  She replied in the affirmative – but this line of questioning was not pursued any further, nor was there any cogent evidence produced to suggest that Mr Balle suffered from this condition.

[27] In answer to further questions, she also advised that she carried out workplace testing, had over 2,500 tests and while qualified for urine testing, she could not take Blood.

[28] In response to questions from the Adjudicative Committee, Ms Pead advised Mr Balle had advised on his testing sheet that he was using Voltaren as a medication and that the amount of usable urine for a sample was 30mls.

Witness Ms C Fox – RIB Investigator

[29] Ms Courtney Fox, a Racing Investigator for the RIB, gave evidence regarding drug testing carried out at the Auckland Trotting Club (ATC) meeting on 7 February 2025, involving the respondent Mr Balle.

[30] Ms Fox said that she attended the ATC meeting at Alexandra Park Racecourse and conducted Driver drug testing with the assistance of The Drug Detection Agency (TDDA). She said that thirteen Drivers were selected for testing, which was scheduled from 4:30pm to 8:30pm.

[31] During the testing process, Ms Fox said she encountered difficulties locating Mr Balle, who was one of the selected Drivers. She said despite several attempts to find him in the stable and public areas, Mr Balle was not located until 6:52pm, when he was finally served with the drug testing notification. Mr Balle acknowledged that he understood and accepted the notice. He explained that he had been having dinner and was unaware of the testing requirement.

[32] Ms Fox said that Mr Balle presented himself to the TDDA testing van at approximately 8:20pm, just ten minutes before the testing window was due to close. However, he failed to provide a sample before the testing window concluded at 8:30pm. Ms Fox said that she informed Mr Balle of his responsibilities under the Rules and advised him that failure to provide a sample, could result in prosecution. Ms Fox said that despite an extension of the testing time, Mr Balle still did not provide a sample by 9:00pm.

[33] On Monday 10 February 2025, Ms Fox advised Mr Balle that, as a result of his failure to provide a sample, his Drivers Licence had been automatically suspended under Rule 514(1). He was subsequently charged on Tuesday 11 February 2025.

[34] Under cross examination, Mr Branch asked Ms Fox whether HRNZ had a written protocol for drug testing available to Licence Holders. Ms Fox said she was unaware of any written protocol from HRNZ, but the RIB had a protocol/policy for drug testing. It was further identified through questioning that the testing technician (Ms T Pead) was qualified pursuant to the AS/NZS 4308:2008 standard to collect specimens for drugs of abuse testing.

[35] Mr Branch questioned Ms Fox as to whether she thought drug testing was an invasion of privacy and whether it amounted to a search. Ms Fox considered that it did not necessarily constitute a search and that Drivers accepted the necessity of testing when signing up for their Licence. In her view, the matter of health and safety was a paramount reason for drug testing. She did however, accept that testing invades one’s personal privacy.

[36] The reasonableness of the testing time available to Drivers on the night was traversed by Mr Branch. There was significant discussion over the testing window, which was set out in the RIB drug testing notification form as being from 4.30pm to 8.30pm (4 hours). Ms Fox considered that the testing window of 4 hours, along with the fact there were 2 vans available, was reasonable given there were 13 Drivers to be tested on the night.

[37] Mr Branch suggested to Ms Fox that the testing window available to Mr Balle was in fact only one and a half hours, as he did not receive his notification until 6.52pm and the vans were to due leave at 8.30pm. Furthermore, he pointed out to Ms Fox, that Mr Balle was driving in a race at 8.10pm, which further reduced the time he had available. In response, Ms Fox stated that she considered that the one and a half hours was still a reasonable period of time for Mr Balle to present for testing.

[38] Mr Branch questioned why Mr Balle had not been advised earlier that he had been selected for testing and Ms Fox explained that she had other issues to deal with and once Mr Balle had left the stable area for a meal, he was not obviously available.

[39] The issue of gender specific male/female testers being available, was put to Ms Fox by Mr Branch. She explained that on the night, there was one male and one female tester available (one in each van), and the policy was that a female tester could test a female and a male, but a male tester could only test a male. Mr Branch suggested to Ms Fox that Mr Balle’s nervousness, (noted in the TDDA technician’s evidence) was due to his tester being a female and that a male tester should have been made available. In response, Ms Fox said that Mr Balle had not requested a male tester.

[40] Mr Branch asked Ms Fox whether taking a blood test would be considered reasonable and she responded that it could be reasonable, but it was not practical.

[41] Ms Fox further explained that the period for testing had been extended twice for Mr Balle through until 9pm, adding that this timeframe was reasonable in that it gave him sufficient time to present himself to the van for testing, and with the additional time given, it was sufficient for him to provide a sample.

[42] Mr Branch questioned Ms Fox regarding whether she considered Mr Balle had acted in any way suspiciously. She said her concern was more related to another Driver who was absent, so in a txt she had used the term “suspiciously absent”, which was more in relation to the other Driver than Mr Balle.

[43] Mr Branch presented the Department of Corrections (NZ) protocols for drug testing prisoners and asked Ms Fox whether the same should not apply in Harness Racing. In response, Ms Fox explained that the prison environment was significantly different to racing. With male and female prisons, it was easy to ensure the tester was also of that gender. From her personal experience, she was able to provide examples of testing carried out in other sporting environments. An example was given where a chaperon or shadow, followed the person being tested once they had been notified of the test, until the sample was given. She considered that Harness Racing provided a more flexible approach to Driver testing, acknowledging that participants had other duties on the night and were allowed to fit the testing around their work within the testing window.

[44] In answer to further questions, Ms Fox explained that Mr Balle was not afforded the option of a retest the next day, as had been offered to another Driver in a recent case (RIB v McCaffrey), because she did not consider that Mr Balle had met the threshold for a retest. Further, he did not raise or request a retest the next day. She said that it was very rare to allow a retest the next day and this was more likely to occur in Thoroughbred Racing where Jockeys were wasting to make the weight for rides, so had difficulty in providing samples on race day. She added that Mr McCaffrey (a Harness Driver, who had been afforded the option of a retest) had a medical condition, confirmed by his doctor, which was why he had been given the option of a retest.

[45] In response to questions from the Adjudicative Committee, Ms Fox advised this was the first testing undertaken with Harness Drivers for some time (6 -8 months or so), but in normal circumstances, testing is carried out more frequently.

Witness Mr S Mulcay – RIB Senior Stipendiary Steward

[46] Senior Stipendiary Steward Mr Mulcay’s evidential statement was admitted by consent.  On Friday 7 February 2025, he was the Chairman of the Stewards Panel working at the ATC Meeting, held at Alexandra Park. At the commencement of the meeting, he was advised by RIB Investigator, Ms C Fox, that Driver Drug testing would be carried out and 13 Drivers would be required for testing. Testing would begin at 4:30pm and conclude at 8:30pm.

[47] He stated that throughout the duration of the night, Ms Fox came into the Steward’s Room on a number of occasions, to advise how the testing was progressing. At 5:56pm, she advised Mr Mulcay via text message, that Mr Balle had not been located.  Later that night, he was subsequently advised that Derek Balle had been served his paperwork, but he had failed to provide a sample.

Witness – Mr C Lange

[48] A letter from Barrister Mr C Lange to Ms L Bishop at HRNZ dated 10 March 2025, was admitted into the evidence by consent.

[49] In his letter, Mr Lange explained that the effect of the Rules, is that the HRNZ Board has the power to approve Laboratories whose employees are authorised persons. He referred to the HRNZ Board Minutes of 20 February 2014, which appointed New Zealand Drug Detection Agency and its personnel as an “authorised person” within the definition of Rule 105 clause (d), and was included in the letter, along with the definition under the Rules for authorised persons under Rule 105 for human drug testing.

[50] He outlined that the definition of “authorised person” in Rule 105 provides:

AUTHORISED PERSON means:-

(a) a person acting in any hospital who is employed by a Crown Health Enterprise and who in the normal course of the person’s duties takes blood specimens; or   

(a) a nurse registered under the Nurses’ Act 1977; or  

(b)  a medical laboratory technologist registered under the Medical Auxiliaries Act 1966 or regulations made under that Act; or   

(c) in the case of urine and blood samples only, any qualified employee of the Institute of Environmental Science and Research Limited (ESR) or New Zealand Racing Laboratory Services (RSL) or such other laboratory as approved by the Board.

[51] Mr Lange further elaborated that the term Board, is defined as the Board of HRNZ for the time being elected under the Constitution (being the Constitutions of HRNZ). The effect of the Rules is that the HRNZ Board has the power to approve laboratories (in addition to ESR and NZRLS) whose employees are authorised persons.

[52] Mr Lange advised that the Board Secretary has undertaken an electronic review of the HRNZ Board records and has not located any reference to the HRNZ Board approving TDDA as a laboratory. But there was an approval appointing the New Zealand Drug Detection Agency (NZDDA) and its personnel to be included as an “authorised person” under Rule 226(2)(d) to take samples from horsemen/women under the Rules in 2014.

[53] Mr Lange observed that that the following entities appear in the Companies Office Register:

1. The Drug Detection Agency Limited.
2. The New Zealand Drug Detection Agency Limited.

[54] Mr Lange noted that the HRNZ Board Minutes dated 20 February 2024 (latter corrected by Mr Dow as 2014) record:

1.2 MATTERS CONSIDERED BY SPECIAL COMMITTEE

It was noted that since the Board’s last meeting, the Special Committee (Chairman, Vice-Chairman and Finance Chair) has considered the following matters:

… 

• New Zealand Drug Detection Agency – Approved as an “Authorised Person” under Rule 226(2)(d) to take samples from horsemen/women (15 January 2014) as requested by RIU

(referred to in item 4.8).

…

4.8 ADDITION OF NZ DRUG DETECTION AGENCY UNDER DEFINITION OF “AUTHORISED PERSON” UNDER RULES 

Upon recommendation from the RIU in relation to Rule 226(2)(d) regarding the ability to take samples from horsemen/women, the Board agreed to include the NZ Drug Detection Agency and their personnel under the definition of “Authorised Person” under Rule 105, clause (d).  

RESOLUTION  

That the Board formally approve the addition of the NZDDA and its personnel as an “authorised person” within the definition of Rule 105, clause (d). 

CARRIED

EVIDENCE FOR THE RESPONDENT

[55] In his opening submission, Mr Branch identified the key issues that formed the basis of Mr Balle’s defence. These were:

1. That the Applicant has failed to establish that TDDA was the (HRNZ) approved laboratory and it had not been established the technician requesting the sample was an employee of the laboratory approved under the rules, therefore she was not an ’Authorised Person;’
2. That Rule 512(2)(a) was not breached.
3. That the time made available to Mr Balle to provide a urine sample was unreasonable.
4. That the method of taking a sample from a male by a young female who was not a doctor or nurse, it was unreasonable and no opportunity for a retest was offered.

[56] Mr Branch also referred to the Supreme Court Appeal judgement in case of Jockey L Cropp, [2008] NZSC 46, who challenged the validity of the NZ Thoroughbred drug testing regime.  Mr Branch considered the Supreme Court Decision placed a heavy onus of being reasonable on drug testing agencies. The Court considered the requirement to supply a bodily sample, and the analysis of that sample constituted a “search.” He submitted that the lack of protocols and or documented testing policy by HRNZ made available to Licence Holders meant that they were disadvantaged.

[57] In addition, Mr Branch submitted that due the lack of an adequate time window for Mr Balle’s testing and the failure to offer a male tester or an opportunity to retest the next day, was unreasonable. Therefore, it was his submission that in consideration of all the circumstances surrounding Mr Balle’s testing on the night, either individually and /or collectively, they were unreasonable.

Witness Respondent Mr D Balle

[58] Mr Balle, in his evidential statement, outlined that he was aware that in the pre-hearing, there was email correspondence between his Solicitor (Mr Branch) and the Applicant (Mr Dow).  This, he believed, related to whether the laboratory involved in testing had been properly approved in accordance with HRNZ Rules. Mr Balle noted that the RIB responded to this, that they only needed to prove he was a Driver and required to provide a sample. Mr Balle said that given this was a legal matter, he had no further comment to make about it.

[59] Mr Balle detailed the timeline of events leading up to and after being served with a notice to provide a urine sample. He said he arrived at the track at 5:00pm, well before his race, but (as a Driver) was not required to be there until 7:40pm. He argued that he had not been allowed sufficient time to provide a sample after being served with the notice as after settling his horse, he and his daughter went for a meal, after which he urinated, and then prepared his horse to race.

[60] He said that he received a text notification for testing at 6:51pm, shortly before he was due to race, which he argued was too late for adequate preparation. Further, he was unaware that the testing van was scheduled to leave by 8:30pm, which added pressure to his attempts to provide a sample after his race.

[61] Mr Balle considered he was not given a reasonable amount of time to provide a sample and that he believed the testing van usually stayed until after the last race. He felt that the late notification and the pressure to meet the testing van’s departure time, was unreasonable.

[62] He also said that he had previously been drug tested 4 or 5 times during his career as a Driver and he had voluntarily provided a urine test the following Monday.  He said this provided a negative result, indicating he had nothing to hide.

[63] Under cross examination by Mr Dow, Mr Balle explained his movements during the evening.  He said that he had seen Ms Fox early in the night and walked past her when she was talking to other participants. He went for a meal. He had urinated after the meal and then received the advice from Ms Fox at 6.52pm that he was required for a test and the window for testing would close at 8.30pm. He said that he had to gear up and get his horse ready to race, so considered that he would have sufficient time to attend at the van after the race, which was programmed to start at 8.10pm.  He arrived at the testing van at 8.20pm.

[64] In response to further questions from Mr Dow, Mr Balle agreed that he had not thought too much about the time window that was available between 6.52pm and 8.30pm. He thought he would be able to provide a sample after his drive at 8.10pm. He said that before and after the race, he had drunk a bottle (1 litre) of water to help him urinate. Once he was not able to provide a sample, he became concerned at the period of time he had available. He said he thought the van would stay later (i.e. past 9pm) and if necessary, till after the last race as they had done so in the past. He agreed that the test period had been extended a further 30 minutes to try to accommodate him.

[65] Mr Dow asked Mr Balle whether he had raised his anxiety with the technician and he advised he had not, but he disagreed with the technician’s opinion that he had not been trying the second and third times, when he attempted to supply a sample.

[66] Mr Balle also accepted that he had not requested a male tester.  And he accepted that he had signed the TDDA testing form which sets out the ‘informed consent’ provisions relating to testing.

[67] When asked why he had waited until the Monday to do the retest, Mr Balle answered he did not think the laboratory would be open and available on Saturday.

CLOSING ADDRESS – Mr Dow

[68] In summing up the case for the RI, Mr Dow submitted that the essential elements of the charge had been made out, namely:

1. That the Respondent is a Licensed Driver.
2. That the Respondent was required under the Rules by a Racing Investigator to supply a sample at a time and place nominated by the Racing Investigator; and
3. That the Respondent failed to provide an adequate or appropriate sample for testing.

[69] Mr Dow pointed to the fact that although the Respondent had been charged under sub-section (a) of Rule 512(2) i.e., (a) fails to comply with such a request, subsection (b) could equally apply (i.e., (b) to provide an adequate or appropriate sample for testing). In that regard, he said that if the Adjudicative Committee favoured sub-section (b) over (a), each could be viewed as alternative charges.  He emphasised that sub-section (a) elements have been satisfied, as he failed to comply with the request to provide a sample. In addition, Mr Dow reinforced the requirements of Rule 226(2) (d) that required Drivers to provide a sample on request i.e. Every driver commits a breach of these Rules who having been required under the Rules by a Racing Investigator to supply a sample at a time and place nominated by the Racing Investigator fails to comply with such a request.

[70] With regards to the “Authorised Person” argument raised by Mr Branch, Mr Dow referred to the letter from Mr Lange.  He submitted that the effect of the Board’s 20 February 2014 resolution, was to approve the New Zealand branch of the international organisation that trades as “The Drug Detection Agency” (DDA) as an Authorised Person. The Board did not include the word “Limited” in its approval, so that approval was granted to the business, not to any particular limited liability company through which that business trades. The Drug Detection Agency trades (and has traded) in New Zealand through several different registered companies. In support of this, he provided a Table setting out 13 relevant registered companies in the group, which made up the various iterations of the DDA Lab Company over the years since 2014. Mr Dow considered this clearly illustrated that the HRNZ Board’s resolution should not be read as approving any single corporate entity.

[71] Mr Dow submitted that it was not unusual for companies to restructure their activities and to artificially differentiate, as was being suggested by Mr Branch, between commercial entities where they all trade as part of a single organisation, was placing an artificial restriction on the HRNZ approval in 2014.

[72] He further submitted that it would be unworkable for the Board to track every name change undertaken by DDA, and then seek to re-approve it, as the approval is for the company that trades under a tradename of The Drug Detective Agency.

[73] Mr Dow referred to the fact that the DDA declined to disclose the employment agreement relating to Ms Pead.  He said that the Lange letter establishes that the approval was given to DDA and its personnel, and that Ms Pead is employed by DDA.  And even when the company name changed, Ms Pead (and others employed by DDA) are still personnel of that company.

[74] With regards to the reasonableness defence raised by Mr Balle, Mr Dow submitted that the request was made by Ms Fox at 6.52pm on 7 February 2025. Ms Fox nominated the TDDA mobile laboratory between 4.30pm and 8.30pm, and Mr Balle failed to provide a sample for testing during this time. He submitted that as no sample was provided, the status of the technician (whether or not they be an approved authorised person) is not relevant to any of these elements.

[75] Mr Dow said that when Mr Balle was served with notice to provide a sample, he thought that the testing time available to him was reasonable, as he set about to prepare for the race – and at that time, there was a 2 hour 8 minute window available to him. Therefore, it was Mr Dow’s submission on behalf of the RIB, (a) that the window was reasonable; (b) that despite 2 hrs and 8 minutes being made available to him, Mr Balle chose not to be tested immediately; and (c) whether or not a male or female tester was made available is a factor, but not an excuse, for Mr Balle for failing to provide a sample. Also, Mr Balle did not raise concerns at the time, about being tested by a female technician, nor did he ask if a male was available.

[76] With regards to no offer being made to Mr Balle for a later retest, Mr Dow submitted that the Rules do not require that the offer or opportunity for a retest be given.

[77] Finally, Mr Dow said that the RIB accepts that such search requests are an intrusion into someone’s privacy.  But the search on this occasion was reasonable, and the law and Rules provide for such requests to be made.  Furthermore, the manner in which the request was made, was reasonable.

CLOSING ADDRESS – Mr Branch

[78] In summing up the case for the Respondent, Mr Branch referred to his written submission, which sets out the key points concerning Mr Balle’s defence of the charge.  In addition, he emphasised the following points.

[79] Mr Branch submitted that TDDA was not an approved Laboratory, referring to a number of Companies Office documents which related to the NZ Drug Detection Agency Ltd.  These documents detailed information concerning the establishment and registration of the company, through to the application to deregister it on 8 August 2023 (subsequently deregistered on 27 September 2023).

[80] Mr Branch pointed to the fact that the laboratory (TDDA Auckland Ltd) was not the same organisation (the New Zealand Drug Detection Agency) that was approved by HRNZ in February 2014. He submitted that this was not simply a technical issue, but one of real substance in that the New Zealand Drug Detection Agency was the entity approved by HRNZ in 2014. It was logical that it was the limited liability company of the same name in existence at that time. The coverage of the HRNZ approval did not extend to TDDA Auckland Ltd, which was not established until November 2021.

[81] He noted that the New Zealand Drug Detection Agency (approved by HRNZ) had been removed from the companies register in August 2023. The company New Zealand Drug Detection Agency had not been established until February 2021. Furthermore, TDDA Auckland Limited had not been established as a company until November 2021. He submitted that the organisation approved by HRNZ therefore no longer existed, as it had “died.”

[82] Mr Branch said that there is no evidence that confirmed the actual trading name of the entity that was approved by the Board in 2014.  Therefore, he submitted it follows that the technician (Ms Pead) was not an Authorised Person under Rule 105(d) of the Rules of Harness Racing.

[83] Mr Branch referred to Rule 512(2)(a) and said that it is unclear whether Mr Balle had in fact breached the Rule, because it refers to fails to comply with such a request – Mr Branch submitted that the purpose of the Rule is aimed at someone who refuses to attend to provide a sample. He said as there was no such refusal, therefore the charge must fail.  In addition, he said that everything Mr Balle did on the night in question was to comply – i.e. he drank water, he turned up at the testing van etc.

[84] With regards to whether the actions of the RIB were reasonable, he referred to the absence of HRNZ having an appropriate testing protocol.  In contrast, he referred to Corrections Regulations which sets out in detail, how inmates are to be drug tested.  He further submitted, that although there was a 4 hour window provided for testing, given that Mr Balle was served with his notice at 6.52 pm, the window available for him was reduced – even when taking into account the additional half hour that was afforded between 8.30 and 9 pm.  In addition, there was no offer of a male tester, or an option of a retest the following day.

[85] In summary, Mr Branch submitted these matters either individually and/or collectively, resulted in an unreasonable testing process.

REASONS AND DECISION

Discussion

[86] The factual situation surrounding what occurred on the evening of 7 February 2025 at Alexandra Park, is not disputed to any degree. The Adjudicative Committee acknowledges that while the main facts are agreed upon and there was considerable common ground, there might be some minor issues, but these are not deemed to be materially significant, and do not affect the overall understanding of what occurred.

[87] Mr Balle denied a charge of having been required by a Racing Investigator to supply a sample of your urine in accordance with Rule 212(1)(g) and 226(2)(d) of the New Zealand Rules of Harness Racing at a time and place nominated by them, he failed to comply with such a request (Rule 521 (2)(a) refers). Having heard and reflected upon the evidence from both the RIB and the Respondent, the Adjudicative Committee determined that in order to reach its decision concerning Mr Balle’s liability, six issues raised during the course of the hearing required careful analysis and assessment.  Those issues included:

1. Was Rule 512(2)(a) breached?
2. Was the Laboratory correctly approved by HRNZ, and if so, was the technician an Authorised Person?
3. Was the lack of a drug testing protocol by HRNZ unreasonable?
4. Was the time made available to Mr Balle to provide a urine sample unreasonable?
5. Was the method of taking a sample from Mr Balle by a female technician unreasonable?
6. Was it unreasonable that no opportunity was offered or afforded to Mr Balle for a retest at some later time?

Issue 1: Was Rule 512(2)(a) breached?

[88] Mr Dow for the RIB, submitted that it had satisfactorily proved the elements of the offence, in that (a) the Respondent is a Licenced Driver under the Rules; (b) the Respondent was required under the Rules by a Racing Investigator to supply a sample at a time and place nominated by the Racing Investigator; and (c) the Respondent failed to provide a sample for testing. Also, Mr Dow pointed to the fact that the Rules empower a Racing Investigator to permit a sample to be taken by an Authorised Person, and witness Ms Pead was an Authorised Person.

[89] Mr Branch disputed that Rule 512(2)(a) had been breached, as Mr Balle had made himself available for testing and therefore had complied with the request.

[90] The Information and particulars of the charge refers only to Rule 512(2)(a) – not subsection (b) of the Rule.  The particulars of the charge must fairly inform the Respondent of his alleged wrongdoing. The Adjudicative Committee believes that the wording of the charge is sufficiently specific to fairly inform him.  Mr Dow invited the Adjudicative Committee to amend the Information to include subsection (b) as an ‘alternative’ if it felt there was reason to do so.

[91] The Adjudicative Committee adopted a simple plain English interpretation of the Rule and found that Mr Balle did not refuse but he did fail. Under the plain reading of the Rule, Mr Balle….

“after being requested by a Racing Investigator to supply a sample at the time and place nominated by the ….Racing Investigator failed to comply with such a request..”

Accordingly, prima facie Mr Balle has breached the Rule.

Issue 2: Was the Laboratory correctly approved by HRNZ, and if so, was the technician an Authorised Person?

[92] The Adjudicative Committee noted that this was a technical legal argument.  While the lack of protocols by HRNZ was raised, no one was querying the standing of the Laboratory, nor was any issue raised concerning the testing processes followed by the technician who was qualified in the AS/NZS 4308:2008 Standard. The issue was simply that if the laboratory was not approved by HRNZ, then the technician was not an approved or authorised person under the Rules.

[93] There was agreement that, as set out in Mr Lange’s letter in 2014, HRNZ resolved to appoint the New Zealand Drug Detection Agency and its personnel as an “authorised person” under Rule 105, clause (d). Mr Branch argued that this was a limited company that had subsequently been applied to be removed from the companies register on 8 August 2023 (the actual removal date was 27 September 2023). At that point, he said HRNZ approval lapsed (for that entity at least). Mr Branch considered TDDA was a separate entity, established in November 2021 and it could not be the approved entity.

[94] Mr Dow argued that this interpretation was too prescriptive. In his view the entity, “the New Zealand Drug Detection Agency” HRNZ approved in 2014, was the New Zealand branch of the international organisation that trades as “The Drug Detection Agency” as an authorised person. The HRNZ Board did not include the word “Limited” in its approval, and it would be unreasonable to consider HRNZ took such a narrow view, that it would have to alter its approval every time the NZ branch took on a new name. In his view, the company TDDA Auckland Ltd, is part of the entity of the New Zealand Drug Detection agency that was approved by HRNZ 2014.

[95] The Adjudicative Committee was not convinced by Mr Branch’s argument. Mr Dow’s position that HRNZ would not have had such a narrow view, is more probable. In support of this view, the Adjudicative Committee notes that HRNZ did not use the term limited, when approving the New Zealand Drug Detection Agency in 2014.

[96] Furthermore, in the evidence provided by Mr Dow under tab 10 of his opening evidence, which lists the companies which are part of the New Zealand Drug Detection entity the New Zealand Drug Detection Agency approved in 2014, has a significant commonality of Directors with TDDA Auckland. The three Directors of the New Zealand Drug Detection Agency are also Directors of TDDA Auckland, suggesting it is more probable there has been continuity within the directorship of the company(s).

[97] After considering all the evidence on this issue, the Adjudicative Committee determined, on balance, that TDDA Auckland Limited was an approved Laboratory under the entity New Zealand Drug Detection Agency, which was approved by HRNZ in February 2014. TDDA Auckland Limited therefore, was an authorised person as defined in Rule 105(d) of the HRNZ Rules. It therefore also follows, that as a current member of staff, Ms Pead is an Authorised Person.

Reasonableness

[98] In its assessment of whether the procedure adopted by the RIB or DDA for requesting or taking a urine sample was unreasonable, the Adjudicative Committee considered the evidence from an objective perspective. The key questions were: Was the procedure fair and reasonable? And was Mr Balle disadvantaged by the procedure?

Issue 3: Was it unreasonable that HRNZ did not have a Drug Testing protocol?

[99] Mr Branch considered HRNZ should have available to Licence Holders, a protocol for drug testing and provided the Corrections Department Regulations as an example of what he considered to be a reasonable protocol. The RIB’s position was that as the body responsible for arranging and overseeing the testing, it had a protocol in place for its area of responsibility and the “Approved Person” employed to carry out the testing by TDDA Auckland (Ms T Pead), was a NZQA Qualified collector pursuant to the AS/NZS 4308:2008 Standard (Collect specimens for drugs of abuse testing & participate in workplace Health & Safety). Furthermore, it was argued that as activities requiring testing varied, this necessarily required different approaches. Sport testing was given as one such example.

[100] There were no issues raised as to the actual testing process that was followed. These being, the RIB’s protocols and TDDA’s testing protocol, the AS/NZS 4308:2008 Standard. The concern expressed by Mr Branch, was limited to HRNZ not having a published drug testing protocol.

[101] HRNZ Rules of Racing require Drivers to make themselves available and follow the directions of Stewards and Investigators to provide samples for drug testing. This requirement is embedded in HRNZ Rules of Racing.

[102] HRNZ relies on the RIB and TDDA to operationalise its policy intent.  The RIB, in administering the Rules of Harness Racing, has set its own policy requirements for testing. Similarly, TDDA, the organisation responsible for carrying out the drug testing, operates under the AS/NZ 4308:2008 standard and it also has its own procedural policy.

[103] The Adjudicative Committee considered that the RIB and TDDA, (the organisations responsible for carrying out the testing) are effectively working under the delegated authority of HRNZ and have adequate protocols in place to ensure the requisite testing standards are met.  Accordingly, whilst it may be desirable that HRNZ has its own testing procedure/protocol, the Adjudicative Committee does not agree that the absence of such policy is unreasonable. Likewise, it cannot be said that Mr Balle was in any way disadvantaged, or unfairly treated, because HRNZ does not have its own procedure or protocol. In these circumstances, it is considered reasonable for HRNZ to not have a separate set of protocols.

Issue 4: Was the time made available to Mr Balle to provide a urine sample unreasonable?

[104] There was significant discussion over what could be considered an adequate time window for the testing. It was said that an acceptable window will be influenced by the number of Drivers being tested, the number of vans being used, as well as the time period provided. On Friday 7 February 2025, the testing window was 4 hours (4.30pm to 8.30pm), two vans were available (with a female and male tester), and 13 Drivers had been identified for testing.

[105] There was a general agreement that this was an adequate window, but it was acknowledged it can be influenced by factors specific to the person being tested. It was accepted that Drivers with different commitments, would have differing requirements. The divergence of view was that Mr Balle and Mr Branch considered the one and a half hours made available to Mr Balle was unacceptable, particularly given that he had to gear up his horse and drive it within that period.

[106] For the RIB, Mr Dow argued Mr Balle was served with a Drug Testing Notification Form at 6.52pm. He presented to the testing van at approximately 8.20pm, ten minutes before the scheduled conclusion of the testing window. He left at 8.30pm, but presented again to the van at 8.45pm, after being told the window had been extended. The testing window was again extended to 9.00pm, to allow him to provide a sample, by which time Mr Balle had still not provided a sample. Therefore, the Informant’s position that a period of two hours and eight minutes for a sample to be provided, was a reasonable window in the circumstances.

[107] It was telling that in cross examination, Mr Balle agreed that he had no concerns with the window (at that point one and a half hours), when served with his papers. His priority was preparing his horse to race, so he did not take advantage of the period immediately after being served (6.52pm), to attend the van. He considered he would be able to provide a sample after the race. His concern on the window began once he was unable to provide a sample at 8.20pm.

[108] The Adjudicative Committee viewed the window available to Mr Balle in two parts. Firstly, there was the 1 hour and a half, as identified in the notification form provided to him, which noted the service of that form to him at 6.52pm and the testing period concluding at 8.30pm. The Adjudicative Committee notes that the time available for Mr Balle to provide a sample, was then extended twice by Ms Fox, to try to accommodate Mr Balle. In the end, in total, he had a two hour and 8 minute window to provide a sample.

[109] It was also noted that Mr Balle, after being served notice to test, by his own admission, focused on his upcoming race at 8.10pm. He thought he would provide a sample after the race, so he did not consider attempting to provide a sample prior to gearing up his horse. He said that his horse has very specific gear, so he could not have another person gear up the horse. Under cross examination, he did agree that there was a period of approximately 30 minutes after he was served at 6.52pm, when he could have presented to the van prior to gearing up his horse.

[110] The time window provided to Mr Balle was no less than 2 hours and importantly, it was extended twice. During his cross-examination, Mr Balle admitted that he initially did not consider the time window to be an issue. It was only after failing to provide a sample at 8:20pm, that he began to change his mind. The Adjudicative Committee finds that the time window afforded to Mr Balle was both fair and reasonable. Furthermore, the Adjudicative Committee does not believe he was placed at a disadvantage.

Issue 5: Was the method of taking a sample from Mr Balle by a female technician unreasonable?

[111] Mr Branch argued that Mr Balle’s inability to provide a sample was heavily influenced by the fact he was nervous providing a sample in front of a female tester. There were questions directed to Ms Fox and Ms Pead (TDDA) over why a male tester was not offered to Mr Balle?

[112] The RIB position was that Mr Balle could have requested a male tester, but he did not. The practicalities of testing were explained by Ms Fox, as a female tester could test a male or a female, but a male tester could only test a male. Where testing was to take place of both genders, then the tester would be female to cover both. However, on 7 February 2025, there were 2 vans provided to meet the requirement of the 13 Drivers being tested and so a male and female tester were available.

[113] Mr Balle did not object on the night to having a female tester, nor did he ask for a male tester. Had he done so, the Adjudicative Committee would have expected the RIB to arrive at a mutually satisfactory solution.  But the situation never got to that point.  The fact is, there was a male tester on site, and had the request been made, the Adjudicative Committee speculates he may, or could have been made, available to Mr Balle.

[114] The Adjudicative Committee accepts that there is a medical condition known as ‘paruresis’ (shy bladder syndrome).  But other than asking the witness Ms Pead whether she was aware of the condition, no evidence was produced by the Respondent to suggest that Mr Balle suffered from this condition.

[115] Therefore, under the circumstances, the Adjudicative Committee does not believe it was either unfair or unreasonable that Mr Balle was not offered a male tester. Further, it cannot conclude that as a result, Mr Balle was disadvantaged.

Issue 6: Was it unreasonable that no opportunity was offered or afforded to Mr Balle for a retest at some later time.

[116] Mr Branch also argued that a retest should have been offered to Mr Balle.  He said that such offer was made in a recent case (RIB v McCaffrey).

[117] The RIB’s position on this issue, was that an offer of a retest is not required in the Rules. Also, Ms Fox in her evidence, stated that a retest was not offered, as Mr Balle did not meet the threshold. She said the circumstances in the McCaffrey case were quite different, in that Mr McCaffrey had a medical condition confirmed by his doctor, which impacted on his ability to provide a sample.

[118] The Adjudicative Committee finds the fact that the RIB did not offer Mr Balle a retest, was not unreasonable or unfair.  Nor was Mr Balle disadvantaged by this decision.  Ultimately, Mr Balle arranged for his own test to be conducted three days later, which proved to be negative.

Comparable Cases

[119] Court of Appeal decision Cropp V A Judicial Committee (2008) – This Decision confirms that the NZ Bill of Rights does have application and provides protections with regards to the Rules of Racing.  The Decision discusses issues around search, consent and NZTR, which were highlighted by Mr Branch in his submissions.  Ultimately, the appeal was dismissed and a key point to be taken from the Decision, as raised by Mr Branch, was that the application and conduct of testing must be done so in a reasonable manner.

[120] RIU v Kennett (2011) – Harness Driver Mr Kennett was charged with refusing to provide a urine sample. Part of his defence to the charge for the refusal was that the tester was a female. Mr Kennett alleged that “he got a shock…that a woman would be looking over me.” Mr Kennett accepted that the tester, who was a female, was a Nurse. Mr Kennett added that he was “a shy person” and “did not want a woman present when he went to the toilet.”  The Judicial Committee hearing the case was satisfied that the required procedures had been strictly complied with by.

In Kennett it was also said that:

The Official Notice issued by Harness Racing New Zealand states that:
“It is the policy of the New Zealand Harness Racing Executive Committee to ensure that harness racing is ‘drug free.’ This policy applies to both horses and horsemen. There has long been in place drug testing of horses. To uphold the stated policy which is designated to maintain the integrity of harness racing and to provide safety measures for horsemen and horses, the Executive Committee have put in place rules and procedures that will allow for the ‘drug testing’ of horsemen.”

[120] RIB v Taylor (2021) – This case relates to a refusal of a Thoroughbred Trainer to provide a sample. Following the Cropp Decision, it was argued on behalf of Mr Taylor, that there had been a breach of the New Zealand Bill of Rights Act. It was argued that the testing must be carried out in a reasonable manner, there was reference to the appropriateness of random testing and also to natural justice principles and fairness. In response, the Adjudicative Committee adopted the RIU v Waddell (2020) Decision when it said:

The drug testing regime in racing is an important protection that has been in place for industry participants since 1995. The testing regime is to ensure the safety and welfare of all licence holders and horses. A refusal under the rules to submit to a drug test by providing a urine sample when requested is a serious breach of the rules. When a licence holder refuses to provide a sample the RIU is denied the ability to find out what, if any, prohibited substance is in the licenced holder’s system.

The Adjudicative Committee then discussed matters relating to Safety Sensitive Activities – which applies to both Thoroughbred and Harness Codes.  The Adjudicative Committee also said that there was a distinction between a Licence Holder which is bound by the Rules of Racing and an Employee under the Employment Relations Act.  The Adjudicative Committee said “that context of drug testing in each of those situations is different. The obvious point of distinction is that a licence holder is not an employee. In addition, and more importantly, a licence holder under the rules of racing is engaging in safety sensitive activity.”

[121] Other cases referred to by the Adjudicative Committee included RIB v Mc Caffrey (2024), and RIU v Robb (2014).

CONCLUSION

[122] The Respondent Mr Balle, (an Open Driver) has denied a charge that having been required under the Rules by Ms Fox, a Racing Investigator he failed to comply with a request to supply a sample of urine at the Auckland Trotting Club between 4.30pm and 8.30pm.

[123] The Adjudicative Committee determined on the balance of probabilities, that Mr Balle breached Rule 512(2)(a) in that he did “fail” to supply a sample at the time and place nominated by the Investigator.

[124] There was considerable discussion and extensive submissions made by both parties on   whether the Laboratory TDDA Auckland Limited was an approved Laboratory by HRNZ. After considering all the evidence on this issue, the Adjudicative Committee determined, on balance, TDDA Auckland Limited was an approved Laboratory under the entity New Zealand Drug Detection Agency, which was approved by HRNZ in February 2014. TDDA Auckland Limited therefore was an “Authorised Person” as defined in Rule 105(d) of the HRNZ Rules. It therefore also follows, that as a current member of staff, Ms Pead is an Authorised Person.

On the Reasonableness of the process: Issues 3, 4, 5, and 6

[125] Mr Branch rightly raised the issue of the requirement for the drug testing process to be reasonable, as it does involve an invasion of privacy and as the Supreme Court held in the Cropp Decision, can be considered to constitute a search. This places an obligation on all organisations carrying out such testing, to ensure the rights of those tested are not impinged and a “reasonable” process is followed.

[126] The protocols required for the drug testing regime are duly held by the RIB and TDDA and the Adjudicative Committee did not consider it unreasonable that HRNZ should rely on those bodies testing protocols and procedures.

[127] In the view of the Adjudicative Committee, even if the lack of HRNZ protocols was seen as unreasonable, it would not be fatal to the prosecution case. Nor would it necessarily invalidate the process followed, unless it could be established that a miscarriage of justice occurred (Rule 1114 refers).  The Adjudicative Committee is firmly of the view, that minor procedural errors or formal defects, will not automatically nullify the case, unless they compromise the fairness or integrity of the judicial process. In this case, the prosecution has not been compromised, and it could not be said that there has been a miscarriage of justice.

[128] In terms of the process followed on the night of 7 February 2025, the Adjudicative Committee considered the time window provided to Mr Balle, which was, in the end, 2 hours and 8 minutes, was acceptable. The window was extended twice for Mr Balle and during his cross examination, he admitted that when first notified, he had not considered the time window, at that time,1 and a half hours, to be an issue. It was only after failing to provide a sample at 8.20pm, that he began to have a change of mind.

[129] The use of a female tester is well established and was not questioned by Mr Balle on the night. Mr Dow noted that a male tester was available, but Mr Balle did not request him. Mr Balle considered he would provide an adequate sample after he had driven at 8.10pm and it was only after he failed to supply a sample, that his concerns regarding the time window and a female tester arose.

[130] The offer of a retest is not provided for in the Rules. Nor was a retest requested by Mr Balle.  The Adjudicative Committee therefore found that it was not unreasonable, that no opportunity was offered or afforded to Mr Balle, for a retest at some later time.

DECISION

[131] The Adjudicative Committee, after considering all the circumstances, the totality of the evidence and submissions both orally and in writing, found the charge proven on the balance of probabilities.

Penalty and costs   

[132] Unless there is any objection, for efficiency reasons and to keep costs at a minimum, it is proposed that the penalty be determined on the papers.   To that end, the Adjudicative Committee requires written submissions as to penalty and costs.

The Informant is to provide their submissions within 7 days of receiving this Decision and the Respondent to provide their reply in a further 7 days.   If, however, for any reason either party cannot meet this timeframe, leave for an extension should be made to the Adjudicative Committee for its consideration.