Non Raceday Inquiry – Written Reserved Decision dated 30 January 2026 – Cody Cole

Cody William Cole holds a Class A Trainers Licence, issued by New Zealand Thoroughbred Racing (NZTA).

Mr Cole is facing one charge pursuant to Rule 801(1)(k) of the New Zealand Thoroughbred Racing Rules that on Thursday the 24th July 2025, at the Matamata Racecourse, Licenced Class A Trainer Cody Cole wilfully failed to perform an act ordered by an Investigator to be performed by him in that he failed to provide for a drug test and is thereby liable to the penalty imposed pursuant to Rule 801(2) of the said rules.

Rule 801 (1)(k) of the New Zealand Thoroughbred Rules of Racing (Rules) states:

A Person commits a serious racing offence within the meaning of these Rules who wilfully fails to perform an act ordered by a Tribunal, NZTR, Stipendiary Steward or Investigator to be performed by him.

Rule 208(f) of the Rules provides that Racing Inspectors have the power to require a rider or any other Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a racecourse training facility or Trainer’s premises, to permit a sample to be obtained from him by or under the supervision of a registered medical practitioner or an authorised person at such time and place as a Stipendiary Steward or Investigator shall nominate.

Rule 656 sets out provisions relating to drug testing, including Rule 656(1), which provides that a Licenceholder who is carrying out a Safety Sensitive Activity at a racecourse is deemed to have consented to a sample being obtained from him by an authorised person if required by an Investigator to provide a sample.

Rule 656(2) provides that an Investigator may require a Licenceholder who is carrying out a Safety Sensitive Activity to supply a sample at a time and place nominated by the Investigator, and the Licenceholder must comply with that requirement.

Mr Cole denies the charge.

The Informant must prove on the balance of probabilities the essential elements of a breach of Rule 801(1)(k) which are:

• Mr Cole is a Licenceholder under the Rules.
• Mr Cole was carrying out a Safety Sensitive Activity at a racecourse.
• Mr Cole was ordered by a Racing Investigator to perform and act, namely to permit a urine sample to be obtained from him by an authorised person; and
• Mr Cole wilfully failed to comply with that order.

The principles regarding the application of the standard of proof in a professional disciplinary context as is this case, are set out by the New Zealand Court of Appeal in Z v Dental Complaints Committee (2009) 1 NZCR 1 (C A). In particular, this standard should be applied flexibly according to the seriousness of matters to be proved and the consequences of proving them.

Both Counsel referred to this Court of Appeal decision in their legal submissions as to the standard of proof in Mr Cole’s case which is accepted by the Adjudicative Committee.

THE EVIDENCE

The document headed Agreed Facts containing the facts that have been agreed between the Informant and Mr Cole was provided by Counsel to the Adjudicative Committee at the hearing.

The Agreed Facts do not require to be proved.

AGREED FACTS

1. The Respondent in this matter, Cody William COLE, is the holder of a Class A Trainers Licence issued by New Zealand Thoroughbred Racing (NZTR).

2. He has held his Class A Trainers Licence since September 2018 having previously held a Class B Trainers Licence since May 2016. He has held an assortment of riding licences issued by NZTR since January 2009.

3. He is 35 years of age. He currently has 95 horses registered in his name in training with NZTR.

4. On Thursday 24 July 2025, Investigators from the Racing Integrity Board conducted drug testing at the Matamata Racecourse and surrounding thoroughbred training establishments.

5. On that day, Mr Cole and members of his team were working horses at the track and in Tirau.

6. Part of Mr Cole’s team’s tasks that day included carrying out a ‘safety sensitive activity’ at the Matamata Racecourse.

7. As he was performing a ‘safety sensitive activity’ that day, he was selected for testing.

8. At 7.39am, Racing Investigator Richard Carr (Mr Carr) served on Mr Cole a Drug Testing Notification Form requiring him to present at The Drug Detecting Agency (TDDA) van for testing on-site between 07:30 to 10:30 hours and to supply a sample.

9. Mr Carr explained the location of the parked TDDA van to Mr Cole, which he acknowledged. Mr Carr handed the notice to Mr Cole. Mr Cole accepts he was aware that he was required to present himself for testing by 10:30am that day.

10. At around 8:25am, Mr Cole asked Mr Carr if he could leave the Matamata Track to return his horse truck full of horses to his training facility in Tirau. Mr Carr permitted Mr Cole to do so, but told him that failing to return would likely result in a charge for “failing to provide for a drug test”. Mr Cole acknowledged this, stating he would return for testing before the 10:30am cut off for testing.

11. At 10:19am, Mr Carr received a text message from Mr Cole containing a recorded MP4 video file with audio commentary from Mr Cole of him holding the lead-rope of a horse.

12. The video stated – “Richard it is (video shows an Apple watch at 9:45) and I’m just dealing with a horse that has gone into a fence last night, waiting for a vet. Um you are probably going to look at me with some suspicion that’s why I am taking this video. But um obviously I need go sort this out and then talk to you later, we will sort out whatever we need to do on that front.”

13. At 10:30am Mr Carr phoned Mr Cole, with the call going unanswered. Mr Carr left a voice message requesting that Mr Cole return the call. Mr Carr made a further call to Mr Cole at 10:32am which also went unanswered.

14. At 10:40am the TDDA van was stood down from the racecourse.

15. At 12:04pm Mr Carr sent a text message to Mr Cole noting the two prior attempts to call and voicemail, and requesting that Mr Cole call him back urgently. Mr Cole did not respond by text message or phone call.

16. On 31 July 2025, Mr Carr contacted Mr Cole to request an interview seeking an explanation. Mr Cole asked if it was being treated as serious and said that if it was, he would speak to a lawyer before attending an in-person meeting. Mr Carr emailed Mr Cole a short time later (at 4:57pm on 31 July) requesting details of the horse and its injuries, the timeline, persons present and details of the vet who attended.

17. Mr Carr’s email to Mr Cole on 31 July also included a directive prohibiting Mr Cole from engaging in any Safety Sensitive Activity, including riding, or handling a horse at any racecourse, training facility, or trainer’s premises, until he provided a negative drug test, and informing Mr Cole that the TDDA had an office at 27 Euclid Avenue, Te Rapa.

18. On 1 August 2025, Mr Cole’s legal Counsel emailed Mr Carr and acknowledged Mr Cole’s receipt of the directive, confirming that Mr Cole would comply with it, and informing the RIB that Mr Cole would see if the TDDA could accommodate him for testing immediately (ie. that day).

19. On 1 August 2025 Mr Cole was tested by the TDDA and returned a clear test. As this test was taken eight days after 24 July 2025, which is outside the expected detection window for some substances, it does not prove nor disprove whether Mr Cole was impaired on 24 July 2025.

20. On 7 August 2025 Mr Cole provided a written explanation via his legal counsel, including attaching a vet report. The vet report recorded:

• A veterinarian from Waikato Equine Vet Centre attended the horse ‘Not A Dancer/Circus Maximus 23C, a 2-year-old colt, on 24 July 2025 after it sustained injuries running through a fence.
• On examination the veterinarian identified wounds to both hind limbs and the left fore. They were cleaned and examined and appeared superficial in nature. The colt was placed on antibiotics for three days, with recommendations to keep legs wrapped while being boxed.

21. Mr Cole stated in the written explanation provided by his legal counsel that the injury had been identified at approximately 9:15am by Eilish Bragg, an NZTR licenced employee of Mr Cole.

22. The email from Mr Cole’s legal counsel also recorded Mr Cole’s statement “I realise I should have responded to Richard, and I am sorry for not doing so. However, with the time restrictions and dealing with the injured horse I was not going to be able to make it back by 10:30am”.

23. Mr Cole has previously been drug tested on one occasion, providing a clear sample in December 2023 (prior to the clear test on 1 August 2025).

24. New Zealand Thoroughbred Racing confirms that Mr Cole has no prior serious racing offences on record.

INFORMANTS EVIDENCE

Senior Racing investigator Richard Carr (Mr Carr) is a Senior Investigator employed by the Racing Integrity Board. He was appointed under the Rules of New Zealand Thoroughbred Racing as an Investigator in January 2022 and is also approved as an Investigator under the Rules of New Zealand Harness and Greyhound Racing. His role also involves routine drug testing of participants licenced by NZTR.

Evidence of Richard Carr:

1. On Thursday the 24th July 2025, I was one of two investigators involved in human drug testing at the Matamata racecourse.

2. This process involves serving a drug testing notification form on participants engaging in a ‘safety sensitive activity’, requesting they undertake a test.

3. At approximately 07:39 hours, I observed NZTR Licenced Class A Trainer – Cody Cole undertaking a ‘safety sensitive activity,’ he approached me, and I served him with a Drug Testing Notification Form advising that on-site testing had commenced at 07:30 hours and would conclude at 10:30 hours.

4. It was explained to him the location of the parked TDDA van which he acknowledged and accepted the notice.

5. At approximately 08:25 hours, Cody Cole approached me and advised that he was leaving the Matamata track to return his horse truck full of horses to his training facility in Tirau. I reminded him – that failing to attend would likely result in a charge for “failing to provide for a drug test”. He acknowledged this, stating he would return and present himself before the 10:30am cut off for testing.

6. At approximately 10:18am hours, I received a text message (timed 10:19) from Cody Cole containing a recorded MP4 video file with audio commentary of the Respondent holding the lead-rope of a horse.

7. The audio stated – Richard it is (video shows an Apple watch at 9:45) and I’m just dealing with a horse that has gone into a fence last night, waiting for a vet. Um you are probably going to look at me with some suspicion that’s why I am taking this video. But um obviously I need go sort this out and then talk to you later, we will sort out whatever we need to do on that front.”

8. There was no further follow up by Mr Cole after the video.

9. At 10:30 hours I attempted to phone Mr Cole on 021 024 16948, with the call going unanswered. I left a voice message requesting that he urgently return the call.

10. At 10:32 hours I made a further call to Mr Cole in a further attempt to speak with him. The call went unanswered.

11. At 10:40 hours the TDDA van was stood down and departed from the racecourse after no correspondence from Mr Cole.

12. At 10:42 hours I advised the RIB Investigations Manager of outcome of testing and the failure of Cody Cole to follow directive to undertake testing.

13. At 10:45 hours I departed Matamata Racecourse.

14. At 12:04 hours Mr Cole was sent a text message, noting the two prior attempts to call him and voicemail, and requesting he call me urgently. No response was received from Mr Cole.

15. Mr Carr confirmed that the three-hour window for testing took into account the licensee’s duties and engagement.

16. Mr Carr confirmed that the Racing Integrity Board had received no information re horse welfare or Health and Safety at that time in the workplace.

17. On the 31st July 2025 Mr Carr contacted Mr Cole to request an interview seeking an explanation to his non-compliance with a drug testing directive. Mr Cole declined an in-person meeting, requesting that all questions be emailed to him. An email was sent to him a short time later, requesting details of the horse and its injuries, the timeline, persons present and details of the vet who attended.

18. On the 7th August 2025, Mr Cole provided the RIB with a written explanation via his legal counsel, including a vet report.

19. On 21st August 2025, Mr Cole was charged with breaching NZTR Rule 801(1)(k) and the process of service was undertaken via email to his legal Counsel.

EVIDENCE OF CODY WILLIAM COLE

1. My name is Cody Cole.

2. I am 35 years old, I am a Class A Trainer, holding a licence with New Zealand Thoroughbred Racing (NZTR).

3. I am a fourth-generation trainer and have always had a passion for the horses. I have worked with horses since I was a kid.

4. I have been in the industry for around 17 years, obtaining my first NZTR licence in January 2009.

5. I have never been before the Adjudicative Committee for anything.

6. I run CW Cole Racing. I currently employ 15 workers in the equine industry. We have got a great and hard-working team. It is my family’s life.

7. Not only do I love the industry, but our whole team truly love the horse and the industry, I am very fortunate to be surrounded by a great, invested team of staff.

8. I currently have 95 horses registered in my name with NZTR.

9. Since my retirement from my sport of weightlifting (where I represented New Zealand at the Commonwealth Games in 2014), I have put my entire being into the racing industry.

10. While I essentially run our business – and I am gladly responsible for all aspects of it – I also work hands-on with the horses. In addition to training and overseeing my staff, I am also physically and practically involved with horse welfare and training.

11. As trainers, we have regular jump-out mornings. Jump outs are the most stressful and intense days as trainers. The horses quite often on edge in addition to a later start time and as a result a later finish time at the track.

12. Jump outs are the hardest and likely one of the riskier tasks we undertake. Another word for “jump out” is “barrier practice”. It involves the horses training at the start gates. For some of the horses, it will be their first ever time at the track. Many of the horses will be young. Some of the horses can develop some anxiety over it.

13. On jump out day, horses can be somewhat stressed, or “on-edge”.

14. Jump outs are by far the busiest and most stressful of the days as a trainer. It is always a serious morning and is usually a high-pressure morning.

15. The morning of 24 July 2025 was a jump-out morning at Matamata Racecourse.

16. On the morning of 24 July 2025, my team and I were working 84 horses at the track in Matamata and in Tirau (my property at 85 Webster Road Tirau). A small number of the 84 were to be jumped-out, and the balance were to be exercised.

17. The day involved – very broadly:

(a) Getting up early, around 2.50 am;

(b) Meeting with the team (there were 12 of us working together that day), at 3:30am at the farm, and 4:30 at the farm;

(c) Discussing the plan for exercise and jump out;

(d) Transporting 20 horses from Tirau to Matamata in addition to the 34 stabled at the Matamata trace – which involves loading them onto the truck, unloading at Matamata;

(e) Managing the team and managing the welfare of the horses;

(f) Overseeing the training and riding of certain horses myself (I will also personally handle and ride the more challenging horses);

(g) Completing the jump-outs and training at Matamata by 8am approximately;

(h) Re-loading the horses for transportation back to Tirau;

(i) This particular morning, we had a handful of highly strung fillies at the track for jump outs, I took primary responsibility for the handling and welfare of these more challenging horses (and take responsibility for the welfare of my team working around them).

(j) We normally like to be departing the track around 8am. The day is always a bit of a hustle to complete and get away around then.

18. I was fully responsible for all my crew, and for all 84 horses.

19. I was fully responsible for ensuring the proper training and jump-outs.

20. We needed to complete our jump-outs at the track by 8:00am, to get back to Tirau to complete the workload at Tirau (exercising the horses at Tirau). This was also my responsibility.

21. Even without young and excited horses added to the stress, we were under considerable time pressure. It was an extremely stressful morning.

22. That morning, I am told it was 7:39am and that sounds about right, Richard Carr from RIB approached me at the track. He told me that I needed to present myself for a urine sample at the Drug Detection Agency van, and he pointed it out too me. We were walking as we were speaking. I was continuing to work, preparing horses for jump-outs.

23. He handed me a notice regarding this, which I accepted. I asked if I needed to go there immediately, and he told me no, but that I had to go there before 10:30am. This was good, because I was dealing with a young horse that I had just saddled and for the animal’s sake, I needed to get the horse to the jump outs without delay. I remember I also didn’t immediately need the bathroom, although I can’t quite recall whether I could have done at that time. In addition, I was riding one of the horses that were jumping out. I understood that I did not need to go to the testing van immediately, which I was grateful for, given the immediate workload. You cannot simply leave horses saddled and unattended – particularly on jump out day.

24. I did not read the written notice. I put it down in the tack room unread. I did not think I needed to read it. And I had been tested before and knew what I had to do. I understand the gist of it, and that I had to present to the van for testing by 10:30am. I have since read the notice, and I did not realise though that there was the option for a saliva test. I recall Mr Carr mentioning a urine test, I do not recall any mention of a saliva test.

25. I continued dealing with the horses, saddling, and bridling, in preparation for jump outs. We jumped out the horses, as they were a group of young fillies some were quite fractious (“on edge”) post jump out.

26. As the horses were quite unsettled post jump out, I loaded them on the truck to get them back home to a less stressful environment, and minimise the chance of injury to them.

27. The fillies that had jumped out were noticeably unsettled waiting to go home. With the horses loaded on the truck, and as stressed as they were we needed to get them home and unloaded without delay.

28. Leaving horses loaded on a truck in an excited state is a risk to the horses. They can injure themselves, seriously, and they can injure other horses on the truck. Jump out days, and this day in particular, carry heightened risks. I was under pressure to get those horses home to a safer environment.

29. I was aware of the requirement to go to the TDDA van, I had not forgotten. So, I went and spoke to Richard Carr. I am told this was at 8:25am, and that time sounds about right. I asked if I could take the truck full of horses to my property in Tirau, and I explained to him it was in the interests of animal welfare, as the horses were particularly on edge having completed their jump out. He seemed relaxed to me. He said it was fine for me to leave. He also said that I needed to return for testing before 10:30am. And, while I don’t recall the words used, he also said there was the potential for a charge for failing to provide if I didn’t return. He seemed relaxed though, he seemed pretty unfazed by it.

30. The Tirau property is about 25 or so minutes from the Matamata (traffic dependant), so a 50 or so minute round trip, plus time (maybe 15 or 20 minutes) for unloading and sorting at the other end. I remember thinking there was enough time to drive to and from, sort the animals out, and to return in time.

31. I would have arrived at Tirau, 95 Webster Road, at around 9:00am.

32. When I got there, we started unloading the horses that we had jumped out.

33. There was a lot of discussion about the horses, given there were 84 being trained or exercised that morning, and I was explaining what needed to happen with these horses we unloaded, and with all the other horses. A lot of this I include on a whiteboard.

34. I recall one of my workers Eilish Bragg, coming up to me and telling me a horse that had been gelded the previous day had run through a fence and was injured. I walked to see the horse.

35. The horse was an unnamed 2-year-old chestnut (Circus Maximus x Not a Dancer). It had been gelded the previous day. It had wounds to its legs that raised concern about the location of those wounds and majority were on the fetlock joints. I was concerned with where the wounds were, and whether they had penetrated the joint capsule, which is a high-risk place and left untreated immediately can be career ending for the horse, or worse. There is also a risk from rupturing of a gelded wound (as he was gelded the day before).

36. The horse is owned by a client. I am responsible for its welfare.

37. As best I can recall I spoke to Nicole Shailer (who works for me) regarding getting a vet to attend. This is standard practice for Nicole to organise these things for me.

38. The majority of the next 40 minutes was spend caring for the injured horse while waiting for the vet to attend.

39. As the horse involved was extremely flighty and reactive I chose to stay nearby until the vet had arrived, for safety reasons. And to prevent the horse from potential further harm.

40. For context, this injured horse was the most challenging horse I had at my property at that time, by a mile. He is one of the most challenging horses I have ever dealt with. He is an animal that seemed to have no concern for self-preservation, which is extremely rare. As some examples of this horse:

(a) His mannerisms – he was flighty and skittish

(b) He had previously (maybe a week prior) ran head first into the side of a round yard – I had never seen a horse do that. He ran so hard into the round yard that he fell down then got up, and did it again. Other members of my team saw this. I think he could have killed himself in the round yard, had I not physically controlled him.

(c) He had been gelded the day before, and during that gelding, he tried to fight the sedation. I had never seen this before.

(d) Then he went through the fence on 24 July.

41. He was covered in cuts and scrapes, and I considered him to be a high risk to himself and to my team. I told my team “do not handle him” and that I will deal with him until the vet arrives and he is under sedation. I personally deal with all the most challenging horses under my care.

42. It had been an eventful and challenging morning.

43. At around 9:45am the vet had not yet arrived, and I realised I would not be getting back to Matamata to the testing van. I knew this might cause problems for me. I did not want Richard Carr to be suspicious of why I did not return, so I took a video of the injured young horse, and sent to him so he would know why I had not returned.

44. The audio stated – – Richard it is (video shows an Apple watch at 9:45) and I’m just dealing with a horse that has done into a fence last night, waiting for a vet. Um you are probably going to look at me with some suspicion that’s why I am taking this video. But um obviously I need go sort this out and then talk to you later, we will sort out whatever we need to do on that front.”

45. The vet arrived a short time later I do not recall exactly when.

46. My phone received a text message from Mr Carr at 12:04pm. I do not recall when I saw the message, but again I accept I received and read it. I accept I did not respond. By lunchtime I thought I had missed the opportunity to return.

47. I do not recall receiving any missed calls that day. I have asked One NZ for a call log but am yet to receive it. I have seen Mr Carr’s statement regarding missed calls, I respect him and that he would not be making that up, but looking back at my phone I can’t locate those missed calls. He may well be correct, I cannot remember.

48. I regret not responding to Richard and I am sorry for not doing so.

49. I was not sure whether or not there would be an issue for me due to me not returning for testing. While I was told it could be serious, I don’t think I appreciated the gravity of it.

50. The next interactions I had relating to this was a week later, on 31 July 2025. Richard Carr called me and asked if he could come and interview me. I asked if they were taking this seriously, and if so, I said I thought I should probably get legal advice. He did not say it was being treated as a serious matter, but I sensed it was. I asked if he would please email his questions to me and I would take advice and get back to him.

51. A short time later (at 4:57pm that day) Richard Carr emailed me requesting details of the horse and its injuries, the timeline, persons present and details of the vet who attended. (produce email)

52. The email said:

Following our recent phone conversation, during which you indicated you were not willing to meet in person with an RIB Investigator, the Racing Integrity Board (RIB) requires a written statement regarding your failure to comply with the directive to undergo drug testing on 24 July 2025, at Matamata.

You previously sent a 26-second MP4 video file with audio commentary via txt message at 10.19 on 24 July 2025, appearing to show you holding the lead of a horse. In your statement, please provide details on the following:

• The identity of the injured horse
• The location of the injured horse
• The nature of the injury
• The timeline of when the injury was identified
• The individuals present at the time

Additionally, please confirm whether a veterinarian attended the horse. If so, provide the veterinarian’s details and a copy of their attendance report. Please also explain why you did not respond to RIB phone calls and text messages on 24th July 2025.

53. The email also included a directive prohibiting me from engaging in any Safety Sensitive Activity, including riding, or handling a horse at any racecourse, training facility, or trainer’s premises, until I provided a negative drug test, and informing me that the Drug Detection Agency had an office at 27 Euclid Avenue, Te Rapa.

54. I received this email sometime around 5:00pm (it was noted as sent at 4.57pm). The next day, 1 August 2025, I attended the TDDA at Te Rapa, and provided a clear test.

55. Also on 1 August, my lawyer emailed Richard Carr, and:

(a) Acknowledged my receipt of the directive;

(b) Confirmed that I would comply with it; and

(c) Informed RIB that I would see if the TDDA could accommodate me for testing immediately (i.e., that day, which they did)

56. Around this time, I also asked the vet Dr Tara McCrissican, for a vet report into the horse that was injured on 24 July, so I could respond to Mr Carr’s questions.

57. On 7 August, I responded to each question in writing via my lawyer (email at 3:52pm that day).

Dear ( )
Firstly, in relation to Mr Carr’s directive on Friday that Mr Cole was not to attend a track etc until he obtained a test and returned a negative result; I am advised that Mr Cole did so immediately, attending the drug testing that (Friday) afternoon – as per my indication to Mr Carr – and that he returned a negative result. Presumably the relevant agency will have notified the RIB/Mr Carr of this.

Secondly, in relation to Mr Carr’s list of questions/required statement for mr Cole, Mr Cole instructs:

Mr Carr asked for the identity of the injured horse;
The horse was Circus Maximus x Not a Dancer 23
The location of the injured horse.
• 95 Webster Road, Tirau
The nature of the injury
• Paddock injury – the horse ran into a fence, with swelling and lacerations.
The timeline of when the injury was identified.
• Approximately 9.15am
The individuals present at the time.
• Eilish Bragg
Mr Carr asked whether a veterinarian attended and, if so, for their details and for any report.
• Mr Cole confirms that a veterinarian attended the horse
• The details are Dr Tara McCrissican, Waikato Equine Veterinary Centre, phone 07 827 5570
Mr Cole provides the attached veterinarian report.
Finally, Mr Carr asked why Mr Cole did not respond to RIB phone calls and text messaged on 24 July 2025. Regarding this, Mr Cole says:
• “I realise I should have responded to Richard and I am sorry to not doing so. However, with the time restrictions and dealing with the injured horse I wasn’t going to be able to make it back by 10:30am”.
I understand also the Mr Cole was permitted to leave the track on the relevant morning, as he had a number of horses loaded onto a vehicle for transportation.

I would simply respectfully ask that the RIB take the above into account in its considerations as to whether to take any steps.

Kind regards

58. I also provided the vet report from Dr McCrissican.

59. Horses are my life. I have a real love for my horses and I think that would be quite apparent in the way I conduct my business and in my opinion is as big part of the growth the stable has experienced over the last few seasons. As well as the calibre of staff we have built in that time. I have a reputation of dealing with tough horses to train and unmanageable horses.

60. When I think about 24 July – and I think about that day a lot – I regret my actions and more so my priorities. I am however a firm believer in doing what you feel is right at the time and I stand by my actions of the day in terms of minimising any undue risk and injury to staff or horse. Had it not been this particular horse, I could have asked one of my team to handle him. But this horse was an extremely challenging animal, who had just been gelded, and who had just run through a fence. This horse was fully my responsibility.

61. I do think returning to Matamata became unrealistic for me although it was always my intention to return to the racecourse.

62. In hindsight, it would have been easier to test when I was at Matamata, before I departed.

63. I have been tested before as a trainer, and countless times as a representative athlete, including Commonwealth Games testing. I have never failed a test.

64. I have never conducted a safely sensitive activity while impaired. I have never attended the track while impaired. I would never do so.

65. I regret my actions that day, all I can say is that without hindsight, and in the pressure of that particular day, at the time I felt I was doing what was right for the safety of my staff and the well-being of the horse.

66. To the extent I should have done more to attend for testing, I apologise for not giving the testing regime more priority.

67. Ultimately, I was told to appear for testing, and I did not do so. I accept that. If I am punished for my actions on the day, I would be disappointed, however my actions were my own choice at the time. If I have breached the rules, then it is because my priorities must have been wrong in terms of what was expected of me. I have always been an advocate for animal health and welfare and in this case that, and concern for my staff, were my priorities.

In cross examination, Mr Cole accepted that he could have given a test at the time when he was at Matamata Racecourse and should have done so. He did not read the notice Mr Carr had given him.

Mr Cole emphasised that C W Cole Racing has a point of difference from other trainers in that he is “hands on” in dealing with horses and is able to “sort out the unmanageable horses”. This horse did not have the standard reaction to sedation as a result of going through a fence. He had not picked up the horse’s injury until later that morning as he had been dealing with the horses in the stable needing hay and water.

Mr Cole did not agree that any of his staff members could have looked after the injured horse. Some could “potentially” have done so, but it would not have been without risk to the horse and his staff. He said it was his choice to stay with the horse as it was his priority at the time.

By 9.45am, Mr Cole had decided that he could not get back to the track before 10:30am.

At 10:15am the vet had not arrived.

When asked in cross examination, he agreed he could have spoken to Mr Carr.

He maintained he “hadn’t noticed” the second call from Mr Carr.

He agreed he could have got in touch with Mr Carr. He said he thought he would not do anything once it was 10.30am and didn’t think about contacting Mr Carr.

He said there was no reason why he didn’t call Mr Carr.

Mr Cole said it was a stressful day “not a great day” and his mind was on the horse and not on the “testing track”.

He agreed he could have sorted it out and been tested, even if it was outside the time, to provide reassurance.

The evidence of Dr Tara McCrissican is accepted and was not challenged by the Informant. Her written brief of evidence is set out below:

1. Dr Tara McCrissican is a qualified Veterinary Surgeon employed by Waikato Equine Veterinary Clinic.

2. She provides veterinary services, primarily in the racing and pre-training industry.

3. Her evidence was that on 24 July 2025 she was called to attend a horse at Cody Cole’s property at 95 Webster Road Tirau.

4. She headed out to the property to attend to the horse. She could not recall an exact time but it was towards the end of track work that day which is usually around 8.30am – 9am. It is roughly a 20 minute drive to Cody’s farm.

5. She attended to a horse that was reported to have recently run through a fence. It was an unnamed 2-year-old chestnut colt (Circus Maximum x Not A Dancer). It had multiple superficial wounds on its hind legs consistent with a fence related injury.

6. She cleaned the wounds which enabled her to better access them. She noted the horse had superficial injuries, specifically wounds to both hind limbs and the left forelimb. There were multiple wounds present following closer examination, none were deep enough to have penetrated into deeper synovial structures or deeper soft tissue.

7. After cleaning the wounds, she bandaged the limbs and prescribed antibiotic therapy.

8. Subsequent to her visit, Cody asked her to provide him with a report. I provided that report on 4 August 2025.

9. Dr McCrissican had been asked about “jump out” days at the track. Her perspective is that jump out morning can be a very busy, therefore stressful day at the track for trainers and riders. There can be large numbers of staff and horses, some train at other facilities and are brought to the specific track for a “jump out” increasing the usual number of horses at the track.

Dr McCrissican confirmed that the horse’s legs were swollen and as some wounds had dried, she had to clean them up and made a “hands on” assessment. She confirmed that the horse was definitely difficult as she had gelded him the previous day when he was very difficult.

SUBMISSIONS

Mr Dow for the Informant submitted that the charge was proved on the evidence. The evidence of Mr Cole was about his priorities on the day and are not a defence to the charge.

Mr Cole has acknowledged that his priorities were wrong and that he now regrets the choices he made. It is submitted that Mr Cole wilfully failed to comply with the direction to undergo a drug test by 10.30am that morning, and that he intended to bring about the result and the consequence of no sample.

Mr Cole intentionally chose to remain at his property, and obtaining permission from Mr Carr to leave the racetrack was irrelevant as the obligation remained on Mr Cole to provide a sample. Other staff could have assisted him with the horse and the vet.

The key point is that all the choices were made by Mr Cole which he now regrets and were not a result of an accident or inadvertence.

Mr Cole’s evidence is that he did not wilfully fail to comply with the requirement to provide a sample as he had a reasonable excuse for failing to do so.

The term “wilfully” means “deliberately and intentionally, not by accident or inadvertence” as is R v Senior (1899) 1QB 283 T 290.

A person “intends” an outcome if it is something that he or she decides, or seeks, to bring about, or put another way acts with the purpose or object of bringing it about, Criminal Law (online ed) at 4.2 and R V Burke (1991) 1AC 115.

Mr Cole did not comply with the requirement to provide a sample as set out in the agreed facts document:

• On Thursday 24 July 2025 at Matamata Racecourse Mr Cole did not attend the drug testing area between being served with the notification from at 7.39am and 8.25am.

• Approximately 8.25am Mr Cole informed Mr Carr that he was leaving the racecourse to return his horse truck to his training facility in Tirau. Mr Carr permitted Mr Cole to do so but told him that failing to return would likely result in a charge for failing to provide for a drug test. Mr Cole acknowledged this.

• At 10.19am, Mr Carr received a text message from Mr Cole containing a recorded MP4 video file of Mr Cole holding the lead rope on a horse. In the video Mr Cole stated that he was dealing with a horse that had gone into a fence. Mr Cole told Mr Carr that he would talk to him later then will sort out whatever needed to be done.

• Mr Carr attempted to call Mr Cole at 10.30am and 10.32 am with no answer. Mr Carr sent a text message at 12.04pm but didn’t receive a response. Mr Cole did not engage with or speak to Mr Carr until 31 July 2025, when Mr Carr made contact with him by telephone.

• In relation to reasonable excuse in A v Police (1999) 2 NZCR 501 at 926, Baragwanath J said: I accordingly reject the argument that the term “reasonable excuse” means “reasonable” only in the subjective perception of the defendant to engage in violence without sanction. “Reasonable” has been adopted by the law in a range of contexts, as imposing an objective standard as a societal norm. In this context I consider it to mean an excuse which an ordinary New Zealander would consider to be reasonable in all the circumstances.

The Adjudicative Committee was referred to three cases of failing to provide a sample which were defended: RIB v Balle (24 April 2024), RIB v McCaffrey (4 March 2024) and RIU v Kennett (2011).

Counsel for Mr Cole submitted that in his case “the evidence as to wilfulness and disproving reasonableness is not only lacking in robustness but there is an absence of evidence”. The reasons given by Mr Cole should have been but were not investigated. This has resulted in a lack of evidence to disprove reasonableness, and a lack of evidence of wilfulness.

There is no or inadequate evidence of any choice made by Mr Cole to omit to comply and there is certainly no “strong” or cogent evidence to meet the standard, as required in this case.

Mr Cole’s decision to stay with the injured horse meant that his not returning in the given window was not “wilful” in the proper sense of that term. It was imposed on him by circumstance and time. Mr Cole made the right choice to stay with the horse and remain there with the vet as there is no issue as confirmed by the vet, Dr McCrissican that the horse was very difficult to handle and treat.

In terms of the relevant circumstances, they include animal welfare and worker safety. Had Mr Cole left Tirau, and thereby left that horse with one of his workers and returned to the track, it could well have resulted in:

(a) Risks to the horse (and risks to Mr Cole under the Animal Welfare Act, as the horse was under his care); and

(b) Risks to his workers safety given the volatility of that particular animal.

Mr Cole had been permitted that morning to leave Matamata and take the horses back to Tirau on horse welfare grounds.

The alleged breach arises due to Mr Cole not returning. Mr Cole when asked, provided details of the horse, the vet, timings, and the workers who located the injured horse.

In Counsel submissions, the RIB could have investigated “every single aspect that is in Mr Cole’s brief”.

In Counsel submission, ultimately the RIB has no basis upon which to say that Mr Cole was unreasonable, because despite Mr Cole providing all the information needed for these inquiries, the RIB never made any such inquiries.

“The stakes are too high for such looseness”. It cannot be fairly concluded that RIB’s evidence proves the allegation. Mr Cole has discharged his burden to establish his “affirmative defence”.

CONCLUSION

In cross examination, Mr Cole accepted that he could have given a test at Matamata Racecourse before returning to Tirau that morning. He also said he did not read the Notice Mr Carr had given him that morning.

Mr Cole agreed that he did not respond to any of Mr Carr’s telephone calls once he had returned to Tirau, except for sending him the video of himself holding a horse. Mr Cole also claimed that he could not recall receiving any missed calls that day and had asked One NZ for a call log, but was yet to receive it. The evidence of Mr Carr in relation to the attempts he made to contact Mr Cole is accepted by the Adjudicative Committee. No evidence was produced by Mr Cole to demonstrate any effort he made to get his call logs. The Adjudicative Committee prefers Mr Carr’s evidence to that of Mr Cole.

The injured horse was treated by a veterinary surgeon who was familiar with the horse as she had gelded him the previous day and was aware that he was not easy to sedate. The veterinary surgeon’s opinion was that the injuries were superficial, but did require treatment which she was able to do.

The evidence of the veterinary surgeon was unchallenged and accepted by the Adjudicative Committee.

The Adjudicative Committee is satisfied, on the balance of probabilities that the following elements of the charge are proved:

Mr Cole holds a Class A Trainers Licence and is a Licenceholder under the Rules. He was performing a Safety Sensitive Activity on 24 July 2025.

The Racing Investigator, Richard Carr ordered Mr Cole to provide a urine sample to an authorised drug testing official as proved by Mr Carr’s evidence and the Agreed Facts document.

The Drug Testing Notification Form referenced the relevant rules; It:

a) Notified Mr Cole that he was required to supply an acceptable sample of urine;

b) Directed Mr Cole to, on receipt of the Notice, report to the designated drug testing station and supply a sample of his urine;

c) Notified Mr Cole that he was not permitted to leave the confines of the racecourse until he had supplied a sample of his urine;

d) Recorded that testing would commence at 7.30am and conclude at 10.30am;

e) Explained that failure to comply with the requirement may result in a charge under the Rules.

The form was signed by Mr Carr and served on Mr Cole by being handed to him at 7.30am.

Mr Cole accepts that he was required to present himself for testing.

There is no issue Mr Cole did not comply with the requirement to provide a sample.

Mr Cole did not attend at the drug testing area between being served with the notification form at 7.39am and 8.25am.

At approximately 8.25am, Mr Cole informed Mr Carr that he was leaving the Racecourse to return his horse truck to his training facility in Tirau. Mr Carr permitted Mr Cole to do so, but told him that failing to return would likely result in a charge for failing a drug test. Mr Cole acknowledged this.

At 10.14am, Mr Carr received a text message from Mr Cole containing a recorded MP4 video file of Mr Cole holding the lead rope and a horse. Mr Cole stated that he was dealing with a horse that had gone into a fence. Mr Cole told Mr Carr that he would talk to him later, then sort out whatever needed to be done.

Mr Carr attempted to call Mr Cole at 10.30am and 11.32am, with no answer. Mr Cole did not engage or speak with Mr Carr for 7 days, namely on 31 July 2025.

Mr Cole has conceded that he should have responded to Mr Carr’s telephone calls, before 10.30am.

In the case of RIB v McCaffrey, the RIB Investigator arranged for Mr McCaffrey to be tested the following day, well after the time for testing had expired, despite the fact he had failed to provide an adequate test the previous day.

In the case of RIB v Derek Balle, Mr Balle had presented at the testing van at approximately 8.20pm, but Mr Balle failed to provide a sample despite his attempts. The testing window was extended to 9pm, but Mr Balle still failed to provide a sample. Mr Balle argued that he had a reasonable excuse for not providing a sample, which was rejected by the Committee who found the charge proven.

Mr Cole’s Counsel’s submissions were on the basis that Mr Cole did not wilfully fail to comply with the requirement as he had a reasonable excuse for failing to provide a sample, in particular, while the standard of proof is the civil standard of balance of probabilities, in serious disciplinary cases such as this case, the quality and cogency of the Informant’s evidence required to meet this standard increases with the seriousness of the subject matter.

This was applied by the Court in the civil penalty case FMA v Warminger [2017] NZHC 327, per Venning J at [33]:

“I apply (the Z v Dental) approach to the present case. While the court will require strong evidence to be satisfied the elements of (the relevant provision) are made out in relation to each issue the standard of proof remains the balance of probabilities”.

The term “wilfully” means deliberately and intentionally not by accident or inadvertence”. A person “intends” an outcome if it is something that he or she decides or seeks, to bring about, or put another way, acts with the purpose or object of bringing it about. R v Senior [1899] 1 QB 283 at 290, R V Burke [1991] 1 AC 135, Adams on Criminal Law (online ed) at 4.2.

Mr Cole declined to be tested at the Matamata Racecourse and obtained permission from Mr Carr to take his horses back to his property at Tirau on the basis he would comply with the direction to be tested before 10.30am. On return to his stable, Mr Cole’s explanation for not being tested was the need for him to look after the injured horse, and in particular, claimed it was because of the safely issues it presented to his staff and the vet. He stayed with the horse until sedated.  He also claimed there was marginal coverage for reception. He also said he could have got back to the track after the vet had arrived, but by 9.45am he decided he wouldn’t be able to get back to the track. In hindsight, Mr Cole said he could have made alternative arrangements with Mr Carr at this stage, but as he had failed to report he thought there was nothing he could do. He acknowledged that he could have tested the next day and could have got in touch with Mr Carr the following week, but he did not.

However, Mr Cole’s explanation for not responding to Mr Carr’s telephone calls before 10.30am is not accepted by the Adjudicative Committee and his claim that he had not missed any phone calls has not been able to be substantiated by One NZ.

Counsel for Mr Cole submits there was an obligation on the RIB to fully investigate the reasons advanced by Mr Cole for failing to comply with the Rule and that it failed to do so. This Adjudicative Committee rejects that submission as the Respondent holds the burden of proof when asserting an affirmative defence. An affirmative defence is where the Respondent introduces new facts or evidence to justify or excuse their actions. The burden of proof shifts to the respondent in this circumstance. It was for Mr Cole to persuade the Adjudicative Committee, on the balance of probabilities, that the circumstances were such as to excuse or justify his choices. It was not for the RIB to present that evidence. He has failed to satisfy the Adjudicative Committee, on the balance of probabilities, that the circumstances existed to justify or excuse his failure to comply with the testing requirements.

In the Adjudicative Committee’s view, Mr Cole had ample opportunity to respond to Mr Carr’s phone calls regarding Mr Cole’s concern for the welfare of the horse and the safety of his staff before 10.30am.

The Adjudicative Committee also acknowledges his regret with the benefit of hindsight, and his acknowledgement he should have complied with the drug testing requirement.

The Adjudicative Committee is satisfied on the balance of probabilities that the charge is proven and that Mr Cole acted unreasonably, deliberately and intentionally, not by accident or inadvertence, in failing to comply with the directive to undergo drug testing on 24 July 2025 at Matamata.

This matter now needs to progress to a hearing as to penalty. The RIB is to file written submissions within 14 days of the date of this Decision and the Respondent is to file a response within 14 days thereafter. The Adjudicative Committee intends to deal with the penalty issue on the papers unless either Counsel raises an objection.