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Background At the Harness Racing Victoria (HRV) Racing Appeals and Disciplinary (RAD) Board hearing on 21 February 2018, Mr Tardio pleaded not guilty to a charge issued under Australian Harness Racing Rule (AHRR) 190(1) for presenting the horse ‘Kissed Flush’ to race at Mildura on 4 April 2017, when not free of cobalt, a prohibited substance when present at a concentration of greater than 100 micrograms per litre in urine. Mr Tardio was found guilty and issued with an 18 month disqualification. The full HRV RAD Board media release can be found here. VCAT Hearing On 19 June 2018, Victorian Civil and Administrative Tribunal (VCAT) Senior Member Gerard Butcher adjourned the hearing to a later date due to Mr Tardio failing to pay the hearing fee on that date. Additionally, Mr Tardio had failed to file and serve any expert witness statement. VCAT Decision On 23 July 2018, VCAT Senior Member Butcher revoked the stay of proceedings issued on 19 March 2018, and dismissed the application for review lodged by Mr Tardio in respect of the decision of the HRV RAD Board on 21 February 2018, due to a failure by Mr Tardio to comply with a number of previous VCAT orders. Mr Tardio’s 18 month disqualification recommenced with immediate effect. The full written VCAT decision can be viewed here. Harness Racing Victoria

Harness racing trainer Kevin Townley has avoided disqualification but has been fined a further $15,000 for producing another horse to race when not free of a prohibited substance (Ketoprofen). The horse in question was Well Defined who won at the Timaru Harness Racing Club’s meeting held at Addington Raceway on 26 April 2018. This was Townley’s third breach of the same rule in less than three months. Full details below:   BEFORE A JUDICIAL COMMITTEE HELD AT CHRISTCHURCH IN THE MATTER of the New Zealand Rules of Harness Racing IN THE MATTER of Information No. A6425 BETWEEN Racing Integrity Unit KYLIE WILLIAMS Informant AND KEVIN DAVID TOWNLEY Public Trainer Respondent Judicial Committee: DM Jackson (Chair), RG McKenzie (Member) Rule Breach: 1004 (1A)(3)(4) RESERVED DECISION OF JUDICIAL COMMITTEE DATED 24 JULY 2018 1. Mr Townley admits a charge that he breached Rules 1004(1A)(3) & (4) by presenting WELL DEFINED at the Timaru Harness Racing Club’s meeting on 26 April 2018 with a prohibited substance in its system, namely Ketoprofen. Mr Townley admitted the breach at the first available opportunity and countersigned the information recording same and a penalty hearing in respect of this charge was scheduled for and heard by this Committee on 5 July 2018. 2. This is Mr Townley’s third breach of this rule in less than three months. The two previous breaches involved positive swabs for Ketoprofen taken from the same horse, WELL DEFINED, on 3 February 2018 and GEENA’S GIRL on 2 March 2018. Mr Townley was fined $7,000 by a Judicial Committee for the first breach and $11,000 by a different Judicial Committee for the second breach. That is a total of $18,000 in fines to date for ketoprofen breaches. 3. The rule provides: “1004 … (1A) A horse shall be presented for a race free of prohibited substances. … ... (3) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules. … (4) A breach of sub-rule (1A), (2), (3) or (3A) is committed regardless of the circumstances in which the TCO2 level or prohibited substance came to be present in or on the horse.” 4. Clause 5 of the Prohibited Substance Regulations provides that the therapeutic substance, Ketoprofen, is not prohibited when present at or below the mass concentration of 100mcg per litre in urine. 5. The consequences of a breach of the Rule are outlined in Rule 1004(7): “every person who commits a breach of sub-rule (2) or (3) shall be liable to: (a) a fine not exceeding $20,000.00 and/or (b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.” 6. The Rule also requires the mandatory disqualification of the horse pursuant to Rule 1004(8) and 1004D. The facts 7. The Summary of Facts presented by Mrs Williams records that the horse WELL DEFINED is owned by Mr Townley’s wife, Mrs M E Townley and is trained by Mr Townley. The horse was entered and presented to race by Mr Townley at the Timaru Harness Racing Club (at Addington) Meeting on 26 April 2018. It won the race it was entered in but the stake has not been paid out. 8. Following the race, the Stipendiary Stewards ordered that WELL DEFINED be post-race swabbed, which occurred. On 10 May 2018 the New Zealand Racing Laboratory reported Ketoprofen was detected in the sample taken. 9. Upon confirmation of the positive swab, Mrs Williams and the Manager of Stewards, Mr Nigel McIntyre, visited Mr Townley’s property and spoke with him. He advised that he took WELL DEFINED to the races in his own float and that the horse was one of two horses that he had raced that day. He could not offer an explanation for the presence of Ketoprofen in the urine sample taken from WELL DEFINED and could not advise when the horse was last treated with Ketoprofen. 10. The last bottle of “key injection” containing ketoprofen on the property was taken for testing by the Racing Integrity Unit on 16 March 2018. 11. A urine sample was taken from WELL DEFINED on 11 May 2018 with the laboratory reporting that sample as negative to Ketaprofen. 12. In accordance with his rights, Mr Townley asked that the reserve sample taken during the initial testing on race day be tested, which occurred in Sydney and which test confirmed the presence of Ketoprofen in the reserve sample. 13. Mr Townley has had 14 horses swabbed since the first positive swab with WELL DEFINED on 3 February 2018. Aside from the two subsequent further breaches, all other tests have been clear. 14. Mr Townley keeps a diary in which he enters treatments that have a withholding time and all of his drugs are kept in a safe. The safe is an initiative implemented after the first positive swab. Mr Townley now primarily uses a vet for pre-race day treatments that have a withholding time, although it seems that was not the case before the return of the earlier positive swabs when he administered treatments himself. 15. The Summary of Facts records that the source of the Ketoprofen cannot be accurately determined despite considerable enquiries. 16. Mr Townley has been training since 1986-87 initially in partnership with his father Mr D J Townley and then on his own from 1994/95 on to the present day and has trained over 460 winners in that time. He has held a licence in one form or another for over 50 years. 17. The Summary of Facts was largely accepted by Mr Townley although he informed the Committee that he did give Investigators an explanation for the presence of Ketoprofen in the urine sample, which was that he could not account for it because there was no record of it in his diary, which diary he has always kept, and further, because there was no Ketoprofen on the property (having been taken away on 16 March 2018). Mr Townley confirmed to the Committee that he had not treated the horse with Ketoprofen prior to the race. 18. Mr Townley openly conceded that he had used Ketoprofen in the past and that he had had bottles of Ketoprofen in his stables during the period of his two earlier swabs. However, the third positive swab had caused him to engage a vet, at considerable expense, to not only administer pre-race treatments, but also to advise him on the keeping of his stables, the use of treatments and the possible sources of Ketoprofen contamination. 19. Mr Townley was at pains to explain to the Committee that he had removed all possible contaminants, be they ointments, be they food, anything which he thought the Ketoprofen may have come into contact with or which by some process, created or transformed into Ketoprofen. Mr Townley emphasised that since he had involved a vet and disposed of these items he has had 7 horses swabbed, all of which have tested negative. He emphasised that this was a brief and isolated incident in the history of his stable for which he could offer no real explanation. Penalty Submissions 20. Mrs Williams presented written penalty submissions for which the Committee is grateful. Mrs Williams submitted that Mr Townley should be disqualified for a period of one (1) year or fined $18-20,000.00 or otherwise be penalised by way of a period of disqualification and fine. 21. Mrs Williams identified that the JCA guidelines suggest a starting point of $8,000.00 for a first offence of this kind and for a second offence a starting point of 2 years disqualification and a fine of up to $10,000.00. 22. Mrs Williams identified by reference to Mr Townley’s earlier fines of $7,000.00 and $11,000.00 that a fine on this occasion ought to be at least a fine of $18,000.00 (being the total of those two earlier fines). 23. Mrs Williams submitted that an aggravating factor here was the third positive swab in a two-month period and further, Mr Townley’s earlier breach in 2003 for a prohibited substance in Australia. 24. Mrs Williams referred the Committee to four decisions concerning breaches of this rule namely RIU v TW Mitchell (12 July 2012), RIU v R Brosnan (13 February 2018), RIU v C and A Edmonds (31 March 2016) and RIU v B Negus (20 March 2018). The Committee will discuss those decisions below. 25. Mrs Williams said that Mr Townley was to be given credit for the manner in which he had conducted himself during the enquiry, his admitting the breach at the first opportunity and otherwise being cooperative but the end result was that he had breached the rules for the third occasion and that that was unacceptable. Mrs Williams also sought the disqualification of WELL DEFINED under rule 1004(8) and costs of $1,250.00 for the testing of the reserve sample. 26. Mr Townley relied upon his explanation which the Committee has recorded above, and also brought two character witnesses with him, namely Mr Dean Hunter and Mr Bruce Dawson. 27. Mr Townley’s primary submission was that he ought not to be disqualified because it would be devastating to him not only because of the consequences (being at this age, the end of his training career), but also the personal pride and reputational damage which he will suffer. Mr Townley reiterated to the Committee that he was flabbergasted as to how this had occurred and could offer no explanation for the presence of the Ketoprofen in the horse’s system on this third occasion. 28. Mr Townley explained that he had purchased two bottles of “Key Injection” containing Ketoprofen in July 2017 and that he had only half a bottle left by the time the second positive swab was returned, which meant of a total of 15 doses available, he had given more or less one dose per horse in his team for approximately 10 or so months. 29. He emphasised that after the second swab and the removal of the bottles by Racecourse Investigators there was no Ketoprofen on the property. The absence of Ketoprofen from the property post 16 March 2018 was not disputed before this Committee. 30. Both parties addressed the Committee on the relevant penalty principles with Mrs Williams emphasising the key principles of denunciation and deterrence, that the punishment ought not to be disproportionate to the breach, the need to rehabilitate the offender and the overall interests of racing in promoting the presentation of horses for racing which are free from prohibited substances. Mr Townley accepted that those were the relevant sentencing principles and understood that the Committee must mark its disapproval of any breach of this rule, let alone a third breach of this rule, but emphasised that there was no need to further deter him given the fines already imposed on him and the steps he has taken to address the problem after the second positive swab. 31. Mr Townley called two men to give character evidence for him. The first was a Mr Dean Hunter who was a member of the New Zealand Police for 21 years and thereafter involved in asset recovery and otherwise the holder of a licence to train for many years. He told the Committee that he had known Mr Townley for 45 years and that he found him to be honest and trustworthy, that he was a man of considerable training skill and prowess who was a great mentor to him and someone who had, in Mr Hunter’s experience, always been careful around supplements and additives and was something of a stickler for compliance with the rules and in particular, the prohibited substance rule. Like Mr Townley, Mr Hunter suggested that after the second positive swab and the removal of Ketoprofen from the stables by the Racecourse Investigators the only possible source for the third positive swab was contamination. 32. Mr Hunter was at pains to emphasise Mr Townley’s integrity. 33. The second man who gave character evidence to the Committee was a Mr Bruce Dawson. Mr Dawson was for many years a Justice of the Peace and sat in a judicial capacity in the District Courts of the Otago/Southland area. Mr Dawson had visited Mr Townley’s stable on a number of occasions and was impressed with how clean it was and how well it was run and commented that he found Mr Townley to be “very fussy”. He said that given his personal experiences of dealing with Mr Townley, he was extremely surprised that he suffered three positive swabs in quick succession and in circumstances where there was no real explanation for the third positive swab at all. Mr Dawson suggested that this third charge should be dealt with more leniently because Mr Townley had done all he could reasonably do after the second positive swab to ensure compliance with the Rules. Mr Dawson was concerned for Mr Townley’s financial position noting the level of fine proposed and emphasised that disqualification would be catastrophic to Mr Townley. 34. Mr Townley concluded his penalty submissions by commenting that only a fool would continue to use or otherwise present horses to race with a prohibited substance when under investigation or otherwise charged for presenting horses with the same prohibited substance. He noted that this period of two or so months during which three positive swabs were returned, had already cost him $18,000.00 in fines and that the Committee ought to deal with this third breach differently than the two earlier breaches where he was perhaps slow to react. Mr Townley was distressed at the prospect of disqualification. Fixing a starting point 35. The JCA penalty guide provides suggested tariffs for a first and second breach but does not go further and suggest penalties for further or multiple breaches. That the guide does not go further is reflected in the penalties imposed in the decisions referred to by Mrs Williams, which vary both as to type and quantum or length. No two cases are alike and the Committee must start the penalty exercise by determining the level of culpability in the instant case. 36. We believe Mr Townley’s culpability to be in the low to mid range on this occasion. The Committee accepts that Mr Townley made a number of changes to his stable operation following the earlier positive swabs, which have seen his horses pass a number of subsequent urine samples with clear results. Mr Townley has hired a vet to administer all pre-race treatments and otherwise to advise on the possible source of the ketoprofen in the third positive swab noting that it is not disputed by the parties that there was no ketoprofen on Mr Townley’s property after the bottle of “key injection” was removed from the stables by Investigators on or after 16 March 2018. 37. In fixing culpability and accepting Mr Townley’s submissions as to his reduced culpability on this third occasion, the Committee has had particular regard to the evidence of Messrs Hunter and Dawson as to Mr Townley’s character. They gave credible character evidence which enables the Committee to accept that Mr Townley is at a genuine loss as to how Ketoprofen entered the horse’s system and that this was neither a deliberate or negligent act on his part. Further, that he has done everything he could do since the two earlier positive swabs to root out the problem and remove it. That Mr Townley has succeeded is supported by the clear swabs since enjoyed by his team of horses. This is not a case of Mr Townley stumbling on blindly to the problem and taking no steps to address it after the second positive swab. 38. Accordingly, we fix the starting point fine for this breach in isolation but having regard to the JCA Penalty Guide at $12,000.00. Aggravating Factors 39. We find the sole aggravating factor to be the third breach of the Rule within a period of no more than three months. For that aggravating factor alone we increase the starting point fine by $8,000.00 to $20,000.00. We disregard the Australian breach as historic and no longer relevant. Mitigating Factors 40. We find the following as mitigating factors: Mr Townley’s frank and prompt admission, the changes he has made to the recording and storing of medications, the removal of a large number of old medications and treatments from his stable, his use of a vet and otherwise his good history and reputation. 41. For those factors combined we will deduct $5,000.00 from the fine for mitigation. 42. If we approach the penalty on the basis of a fine only therefore, we would get to a fine of $15,000.00. However, the circumstances of a third breach within a short timeframe and the nature of the two earlier breaches mean that we must consider whether a fine is the appropriate remedy or whether, as is submitted by Mrs Williams, Mr Townley ought to be disqualified. Analysis – whether to go further and disqualify? 43. It is important at this juncture to record the primary purpose of disciplinary proceedings under the Rules of Harness Racing. Punishment is not the primary purpose. Rather, the purposes of disciplinary proceedings are set out in Clause 5, Fifth Schedule, Rules of Harness Racing and include: a) to ensure that racing is conducted in accordance with the code rules; b) to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry; c) to uphold and maintain the integrity of the sport of racing and the racing industry; d) to protect the participants in the sport of racing, the racing industry, and the public. 44. These principles originate from the Supreme Court judgment in Z v Complaints Assessment Committee [2009] 1 NZLR 1 and have been expressly adopted by the Code in the Rules. They are binding on a Judicial Committee and must be observed. 45. As already noted the decisions referred to by Mrs Williams varied significantly as to penalty and highlight that disqualification is, in fact, rare even in cases of multiple breaches. Indeed the only case of disqualification presented to the Committee was that of Mitchell whose original disqualification for three charges of presenting horses with elevated TC02 results of 12 months disqualification was reduced on appeal to 9 months and a fine of $4,500.00 noting that Mr Mitchell had previously been charged with presenting a horse with an elevated TC02 and fined earlier such that on that occasion it was in effect Mr Mitchell’s second, third and fourth offence across a period of several months. This case is different in kind to Mitchell in terms of duration, substance and culpability. 46. That this is the third breach in a short period means that the Committee ought to also consider the overall effect of the penalty on Mr Townley across the three penalties imposed on him in total. The Committee has considered Mr Townley’s submission to this effect and has determined that the totality principle is relevant and applicable here. 47. At the heart of the totality principle is the need for the punishment to meet the crime and that when arriving at an appropriate penalty for several breaches, a Committee must not only assess each breach individually, but also assess the licensee’s overall culpability and determine what effective penalty is appropriate for the totality of the licensee’s conduct. 48. Again, this is an acknowledgement that the penalty analysis is driven by the need to match the penalty with the gravity of the overall conduct. Further, factors such as age are relevant considerations that should be taken into account when ensuring that the overall end penalty is not crushing or unfair. 49. The totality principle is not limited to assessing one penalty for multiple breaches and extends to assessing successive but proximate penalties for separate events. Here where there have been three breaches that have resulted in three penalty hearings before three different Committees, the proper approach is for this Committee to reflect on what the appropriate overall penalty would have been if Mr Townley had been sentenced on all matters at the same time, and to adjust the penalty imposed for the third breach accordingly. What is required is an assessment of the cumulative effect of the penalties in combination with earlier penalties, so that the end penalty for the overall offending is not wholly disproportionate. 50. We have done this. The Committee accepts that the effect of disqualification on Mr Townley would have a crushing effect, would see him forced into early retirement and ruin his reputation. It would be a tragic end to a notable training career. It would see his stable cease operation and horses transferred to other stables. We accept that that is too harsh a penalty and would be wholly disproportionate to Mr Townley’s overall culpability. 51. This third breach is different in kind to the two earlier breaches and, stepping back, the Committee determines that denunciation and deterrence are served by a further fine on this occasion. Mr Townley confirmed to the Committee that he could afford to pay another fine. 52. We have considered totality in terms of a fine too. Adopting the end point fine outlined above and then stepping back and viewing the three fines together ($7,000.00 plus $11,000.00 plus $15,000.00) means a total overall fine of $33,000.00. 53. A fine sum of $33,000.00 is not disproportionate to the gravity of his breaches overall, namely across the three breaches of the Rule to date. 54. That is a great deal of money. It will hurt Mr Townley but it will not break him and importantly, it will serve as a warning to all licensees of the importance of strict adherence to the prohibited substance rule. 55. Accordingly, while Mr Townley has avoided disqualification on this occasion, the fine will not be further reduced for totality purposes. 56. Mr Townley is fined $15,000.00 for this third breach of the Rules. 57. The Committee further orders that the horse WELL DEFINED is disqualified per Rule 1004(8) from Monday, 30 July 2018. 58. Mr Townley is ordered to pay the costs of the reserve sample in the amount of $1,250.00. There will be no other orders for costs either of the Informant or of the Committee. DM Jackson Chair ________________________________________________ Harnesslink Media

On Thursday 5 July 2018, RWWA Stewards conducted an inquiry into a report received from the ChemCentre in Perth that the pre-race blood sample taken from BORONIA GULLY prior to it competing in and finishing tenth in Race 3 the Golden Glass Fillies and Mares MS Pace (1684m) at Pinjarra on Monday 18 June 2018 was found to have a level of total carbon dioxide content (TCO2) in excess of 36.0 millimoles per litre in plasma. This finding had been verified by Racing Analytical Services Limited Laboratory (RASL) in Victoria. Evidence was heard from RWWA Investigator Mrs Freya Bennett, RWWA Industry Veterinarian Dr Judith Medd, ChemCentre Analyst Ms Kelly Wilson and the Trainer Ms Stephanie Smith. Ms Smith pleaded guilty to the following charges; Under  HRR190 (1) and (2) – that Ms Smith as the trainer, presented BORONIA GULLY to race in Race 3 at Pinjarra on 18 June 2018 not free of the prohibited substance alkalinising agents, as evidenced by a concentration of TCO2 in excess of 36.0 millimoles per litre in plasma. Under HRR196C - that Ms Smith did administer the alkalinising agent EquiShure to BORONIA GULLY on Sunday 17 June 2018 which was engaged to race in Race 3 at Pinjarra on 18 June 2018, such administration being within one clear day of the commencement of the race, contrary to the provisions of Rule 196C. Under HRR190B(1)(b) – that Ms Smith failed to maintain a record of treatment of alkalinising agents and ulcer treatments to the mare BORONIA GULLY. Stewards having reserved their decision with respect to penalty, advised Ms Smith yesterday that a disqualification of 6 (six) months was being imposed with respect to the offence under HRR 190, that a fine of $2,000 was being imposed for the offence under HRR196C, and that a fine of $200 was being imposed for the failure to maintain a record of treatments to BORONIA GULLY. BORONIA GULLY which finished 10th was also disqualified from the race in question. In determining the penalties, stewards took into account amongst other things: Ms Smith’s very good record over a number of years in both Thoroughbred and Harness Racing. The professional and respectful manner in which Ms Smith conducted herself during the investigation and inquiry into this matter. The acknowledgement of all three offences. The question of the totality of penalties. The nature of the prohibited substance, being classed as potentially performance enhancing. The high levels of TCO2 reported by both the ChemCentre and RASL. Previous cases and penalties issued for the respective rules in question. The serious nature of these offences and the need for deterrence both general and specific.   Media Contact: Russell Quinn Manager Corporate Communications Ph: 9445 5418 M:  russell.quinn@rwwa.com.au

On 12 July 2018, the Harness Racing Victoria (HRV) Racing Appeals and Disciplinary (RAD) Board considered charges issued by HRV Stewards under Australian Harness Racing Rules (AHRR) 190(1) and 190B(1) against licensed trainer John F Ryan. AHRR 190(1) reads as follows: A horse shall be presented for a race free of prohibited substances. The charge under AHRR 190(1) related to a urine sample collected from the horse ‘Diamond Grace’ after it finished first in Race 2, the ‘Egmont Park Stud Pace’, at the Cobram harness racing meeting on 5 February 2018. Racing Analytical Services Limited (RASL) reported that analysis of that urine sample revealed the sample to contain arsenic in excess of the allowable threshold. Mr Ryan was also charged with a breach of AHRR 190B(1) being that he failed to keep and maintain a log book in accordance with the rules. Mr Ryan pleaded guilty to both charges before submissions on penalty were heard from HRV Stewards and Mr Ryan. In deciding an appropriate penalty, the HRV RAD Board considered Mr Ryan’s guilty plea and cooperation throughout the investigation; Mr Ryan’s excellent record in regard to prohibited substance matters over 37 years in the industry; both general and specific deterrence; the circumstances of the matter; the significance of prohibited substance matters; and the onus being on participants to be aware of industry issues. Mr Ryan was subsequently fined $3000, of which $1500 was suspended for a period of 12 months. In relation to the log book charge, Mr Ryan was fined the sum of $250. Harness Racing Victoria

RWWA Stewards yesterday concluded an inquiry into comments that had been posted on a Facebook page concerning a Senior RWWA Racing Official. Harness Owner Mr A. Kirke pleaded guilty to a charge relating to the publication of offensive comments about the Stewards and was issued with a fine of $1,200. A portion on that fine ($600) is suspended for a period of 12 months on the condition that no further breaches to this or similar rules occur (Rule 248 RWWA Rules of Harness Racing). In considering the penalty Stewards took into account: Previous penalties issued in Western Australia and South Australia in regards to comments made within the same Facebook page. That the inquiry was able to be completed by way of written submissions from Mr Kirke who acknowledged culpability for the breach of the rules and thus expedited the process. The obvious remorse and that a written apology was made for the comments. The need to send a clear message to Mr Kirke and the wider racing industry that Stewards performing their duties are entitled to be protected from offensive comments. Media Contact: Russell Quinn Manager Corporate Communications Ph: 9445 5418 E: russell.quinn@rwwa.com.au

Harness Racing Victoria (HRV) Stewards have issued a charge against licensed trainer Gary Quinlan under Australian Harness Racing Rule (AHRR) 190(1) which states: A horse shall be presented for a race free of prohibited substances. It is alleged that Mr Quinlan presented ‘Most Happy Cullen’ to race at Cranbourne on 19 April 2018 when not free of arsenic, a prohibited substance when evidenced at a concentration above the allowable threshold. The charge will be heard by the HRV Racing Appeals and Disciplinary (RAD) Board on a date to be fixed.   Harness Racing Victoria

HARNESS Racing New South Wales (HRNSW) Stewards conducted an inquiry today into licensed driver Mr Douglas Hewitt recording an alcohol concentration in excess of 0.02% on a breath analyser at the time he presented to drive LADY SWISS in Race 2, the SPORTSWRITER NSW BREEDERS CHALLENGE TWO-YEAR-OLD FILLIES FINAL (Group 1) at Tabcorp Park Menangle on Sunday 1 July 2018. Mr Hewitt pleaded guilty to a charge pursuant to Australian Harness Racing Rule (AHRR) 250(1)(a) as follows: AHHR 250.(1) A driver commits an offence if:- (a) A sample taken from him is found upon analysis to contain a substance banned by Rule 251,  AHHR 251. The following substances and/or their metabolites, artifacts, and isomers are declared as banned substances in drivers when present in a urine sample (unless otherwise stated) at a concentration above the applicable cut-off level:- (c) All diuretics (0μg/L): Probenecid: (0μg/L): Alcohol (at a concentration in excess of 0.02% on a breath analyser): Mr Hewitt’s drivers licence was wholly suspended for a period of 3 months to commence from 1 July 2018, the date upon which he was stood down. Mr Hewitt was informed that an application would be considered by HRNSW Stewards for him to return to trackwork after a period of 10 weeks from 1 July 2018. In considering penalty Stewards were mindful of the following: Mr Hewitt’s first offence for such matter; Seriousness of the offence; The concentration of alcohol recorded being 0.026%; The status of the harness meeting and Group 1 status of the race; Mr Hewitt’s guilty plea, licence history, personal and financial subjective facts.   Harness Racing NSW (HRNSW) is the controlling body for harness racing in New South Wales with responsibility for commercial and regulatory management of the industry including 33 racing clubs across the State.  HRNSW is headed by a Board of Directors and is independent of Government.   To arrange an interview or for further information please contact: MICHAEL PRENTICE | INTEGRITY MANAGER (02) 9722 6600 •  mprentice@hrnsw.com.au GRANT ADAMS | CHAIRMAN OF STEWARDS (02) 9722 6600 •  gadams@hrnsw.com.au  

HARNESS Racing New South Wales (HRNSW) Stewards conducted an inquiry today into licensed driver Mr Mitchell Reese recording an alcohol concentration in excess of 0.02% on a breath analyser at the time he presented to drive at the Penrith trials on Wednesday 27 June 2018. Mr Reese pleaded guilty to a charge pursuant to Australian Harness Racing Rule (AHRR) 250(1)(a) as follows: AHHR 250. (1) A driver commits an offence if:- (a) A sample taken from him is found upon analysis to contain a substance banned by Rule 251, AHHR 251. The following substances and/or their metabolites, artifacts, and isomers are declared as banned substances in drivers when present in a urine sample (unless otherwise stated) at a concentration above the applicable cut-off level:- (c) All diuretics (0μg/L): Probenecid: (0μg/L): Alcohol (at a concentration in excess of 0.02% on a breath analyser): Mr Reese’s drivers licence was wholly suspended for a period of 10 weeks to commence from 27 June 2018, the date upon which he was stood down. Mr Reese was informed that an application would be considered by HRNSW Stewards for him to return to trackwork after a period of 8 weeks from 27 June 2018. In considering penalty Stewards were mindful of the following: Mr Reese’s first offence for such matter; Seriousness of the offence; The concentration of alcohol recorded being 0.036%; Mr Reese’s guilty plea, licence history, personal and financial subjective facts. Harness Racing NSW (HRNSW) is the controlling body for harness racing in New South Wales with responsibility for commercial and regulatory management of the industry including 33 racing clubs across the State.  HRNSW is headed by a Board of Directors and is independent of Government.   To arrange an interview or for further information please contact: MICHAEL PRENTICE | INTEGRITY MANAGER (02) 9722 6600 •  mprentice@hrnsw.com.au GRANT ADAMS | CHAIRMAN OF STEWARDS (02) 9722 6600 •  gadams@hrnsw.com.au

Harness Racing Victoria (HRV) Stewards have concluded an inquiry into a report received from Racing Analytical Services Laboratory (RASL) that Graceful Art returned an elevated plasma total carbon dioxide (TC02) reading in a pre-race blood sample taken from the gelding prior to it competing in Race 7 at the Mildura meeting conducted on 14 March 2018. Peter O’Brien, trainer of Graceful Art, was interviewed by HRV Stewards on 26 March 2018 concerning the husbandry practices adopted leading into the gelding’s engagement at Mildura on 14 March 2018.   Mr O’Brien provided further evidence to the inquiry in relation to the husbandry practices he adopted and a report from HRV Senior Veterinarian Dr Julia Aspinall concerning the product ‘Neutrolene Plus’ was considered. After consideration of all the evidence Mr O’Brien was found guilty of a charge under Australian Harness Racing Rule (AHRR) 196C(1)(b) which states: 196C.  (1)   A person must not administer an alkalinising agent in any manner to a horse which is engaged to run in a race: (b)  at any time within one (1) clear day of the commencement of the race. The particulars of the charge being: On 13 March 2018 when the trainer of Graceful Art he administered ‘Neutrolene Plus’, a product containing alkalinising agents, to that horse within one clear day of Graceful Art competing in Race 7 at the Mildura meeting conducted on 14 March 2018. In assessing penalty Stewards took into account: Mr O’Brien’s not guilty plea and prior offence record; Any penalty imposed must demonstrate the importance of only administering substances within the permitted timeframe determined by the AHRR; Mr O’Brien’s personal and financial circumstances; The administration occurred within one clear day of the race as opposed to raceday. Stewards accordingly imposed a fine of $3,000. After hearing submissions from Mr O’Brien and Ms Cassandra O’Brien, managing owner of Graceful Art, Stewards ordered under the provisions of AHRR 258(1) that Graceful Art be disqualified from its 5th placing in Race 7 at Mildura on 14 March 2018 and the placings were amended accordingly.   Harness Racing Victoria (HRV)  

The Harness Racing Victoria (HRV) Racing Appeals and Disciplinary (RAD) Board today (28th June) considered a charge issued by HRV Stewards under Australian Harness Racing Rule (AHRR) 190(1) against licensed trainer-driver Craig Turnbull. AHRR 190(1) reads as follows: A horse shall be presented for a race free of prohibited substances. The charge under AHRR 190(1) issued by HRV Stewards against Mr Turnbull related to a urine sample taken from the horse ‘The Russian’ at the Kyabram trial meeting on 24 September 2017. The definition of a ‘race’ within the AHRR includes an official trial. Racing Analytical Services Limited (RASL) reported that the analysis of the urine sample revealed it to contain the prohibited substance frusemide. The Australian Racing Forensic Laboratory (ARFL) in NSW confirmed these findings in the reserve portion of the relevant sample. Mr Turnbull pleaded guilty to the charge before submissions on penalty were presented. In deciding an appropriate penalty, the HRV RAD Board highlighted Mr Turnbull’s cooperation throughout the investigation and guilty plea at the earliest opportunity, along with his good record over a long period in the industry. The HRV RAD Board also highlighted the purpose of the rules in relation to prohibited substances and the dangers associated with horses competing with these substances in their system. Mr Turnbull was subsequently fined $3000, of which $1500 was suspended for a period of 12 months. HRV RAD Board Panel: Alanna Duffy (Chair), John Kearney

On 18 June 2018, the Harness Racing Victoria (HRV) Racing Appeals and Disciplinary (RAD) Board considered a charge issued by HRV Stewards under Australian Harness Racing Rule (AHRR) 267(1) against Mr Kieran O’Keeffe. AHRR 267(1) reads as follows: Subject to sub-rule (2) the Stewards may for such period and on such conditions as they think fit, disqualify a person who is found guilty of a crime or an offence in any State or Territory of Australia or in any country. The matter was heard by the HRV RAD Board upon the referral by the Controlling Body, following a recommendation by the HRV Stewards. The charge relates to Mr O’Keeffe being convicted on appeal in the County Court at Geelong on 10 April 2018, of two charges which related to Mr O’Keeffe’s driving of a motor car in October 2017. Mr O’Keeffe pleaded guilty to the charge prior to the HRV RAD Board hearing submissions on penalty from HRV Stewards and Mr O’Keeffe. When assessing penalty the HRV RAD Board took into account Mr O’Keeffe’s guilty plea, his cooperation, his remorse, his age and the circumstances of the offence. Mr O’Keeffe was disqualified for a period of 10 days with the HRV RAD Board ordering that the period of disqualification be back dated to 27 November 2017.  HRV RAD Board Panel: John Doherty (Chair), John Kearney, John Denahy   Harnesslink Media  

On 12 June 2018 Racing and Wagering WA (RWWA) Stewards concluded an inquiry into comments that had been posted on a Facebook page concerning a senior RWWA Racing official. In conclusion to this inquiry, harness owner Mr R Hughes pleaded guilty to a charge relating to the publication of offensive comments about a Steward and was issued with a fine of $2,000 with $1,000 of that fine being suspended for a period of 12 months on the condition that no further breaches to this or similar rules occur (Rule 248 RWWA Rules of Harness Racing). In considering the penalty Stewards took into account:  Previous penalties issued in Western Australia and South Australia in regards to comments made within the same Facebook page.  That the inquiry was able to be completed by way of written submissions from Mr Hughes who acknowledged culpability for the breach of the rules and thus expedited the process.  The obvious remorse and that a written apology was made for the comments.  The need to send a clear message to Mr Hughes and the wider racing industry that Stewards performing their duties were entitled to be protected from offensive comments. Media Contact: Russell Quinn – Manager Corporate Communications Ph: 9445 5418    Racing and Wagering WA

RWWA Stewards finalised an inquiry into the betting activities of licenced trainer/driver Mr Colin March. Evidence was taken from Mr March and an analysis of Mr March’s betting account was undertaken. Mr March pleaded guilty to two (2) charges pursuant to Australian Harness Racing Rule 173(1) in that on 30 January 2018 and 6 February 2018 he placed bets on a horse that he drove in a race. In determining penalty stewards took into account: His guilty plea, co-operation throughout the inquiry and personal circumstances The small value of the bets His previous record over a long period which showed no prior offences under this rule The seriousness of the offence and the need for deterrence both general and specific. Mr March had his licence to drive in races suspended for two months on each charge.  Stewards ordered these penalties be served concurrently.   Media Contact: Barbara Scott – Chief Steward, Harness Ph: 9445 5176 Barbara.scott@rwwa.com.au   RWWA Harness

Just as Delaware Governor John Carney on Tuesday made the first legal single game sports wager in the country outside of Nevada, the US Postal Service was bringing harness racing horsemen and women in the First State letters that has created quite a stir. The Delaware Harness Racing Commission has sent registered letters to owners and trainers asking for very specific horse records to be sent to them. Horse people who reside outside of Delaware have also received the letter if they raced a horse in the state. The letter starts off “The Delaware Harness Racing Commission (DHRC) is conducting an in-depth review of the ownership and management of horses raced at Delaware tracks over the past few years. What they are asking for includes showing the purchasing and selling prices on all horse; record of payments from racetracks; documentation of payments to all owners; training bill to all owners, bank statement, tax returns, 1099’s and W-2’s and the list goes on and on, more than 20 items are being asked for. Harnesslink talked with noted attorney and prominent harness racing owner, Howard Taylor, who also received a letter today. “I got one,” Taylor started off saying. “What they are asking for is worse than an IRS audit. “I am going to comply to the best of my ability within reason,” Taylor explained. “They say in the letter that they are looking for is hidden ownership. I am not going to give them a lot of items including my tax returns. I don’t keep 1099’s and I don’t know what my accountant does with them. “They ask for, which is unbelievable,” Taylor added. “Is for mine and my spouse’s financial incomes. They want access to my personal business records. I don’t think so.” Taylor said his has talked to numerous horse people Wednesday. “My phone has been exploding all day,” Taylor exaggerated. “One client I talked to said he has already talked with his accountant and was told it could cost up to $10,000 to comply. I also had another call from an owner who said he might just get out of the business. “I talked with another attorney,” Taylor said. “and he said if everyone were to comply the files would fill a warehouse. This could take nine agents up to a year to go through everything. “I also got a letter with the names of my horses that they want full records on,” Taylor said. “And one of the horses on the list I don’t ever remember owning. I had five horses on my list. Another owner I talked with said he has 80 horses on his list.” What is next for the horsemen and women to do? “I really don’t have a lot of answers right now,” Taylor said. “I have yet to even talk with the horsemen’s association in Delaware. Taylor said legal proceedings are being developed. If people do not comply with what the Delaware Harness Racing Commission is requesting, the letter states that…”failure to supply the requested information may result in horses being placed on the Steward’s list. In addition, other penalties may apply including fines and suspension or revocation of your license.” By Steve Wolf, for Harnesslink  

Harness Racing Victoria (HRV) Stewards have issued a charge against licensed trainer-driver Anthony Adams under Australian Harness Racing Rule (AHRR) 190(1) which states: A horse shall be presented for a race free of prohibited substances. It is alleged that Mr Adams presented ‘Lifeplusten’ to race at Mildura on 28 December 2017 when not free of arsenic, a prohibited substance when evidenced at a concentration above the allowable threshold. HRV Stewards also issued a further charge under AHRR 119C in relation to the stabling location of ‘Lifeplusten’ and ‘Mister Magic Man’ during the relevant time. The charges will be heard by the HRV Racing Appeals and Disciplinary (RAD) Board on a date to be fixed.   Harness Racing Victoria

Harness racing trainer Robert Dunn and his son John have successfully appealed their $14,000 fine given to them for presenting horses to race with a prohibited substance in their system. On the 4th July 2017 the New Zealand Racing Laboratory issued Analytical Reports indicating the presence of caffeine in four swabs taken from horses racing at Nelson on the 9th and 11th of June 2017. This started a lengthy investigation into why and how this stimulant (caffeine) came to be in the system of the winning horses and ended with a $7000 fine for both Robert and John handed down by the JCA in March 2018. The appeal which was held last Friday resulted in reducing the fine from $7,000 each down to $3,900 for both Robert and John Dunn.   Full details below:   BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY UNDER THE RACING ACT 2003 IN THE MATTER of the New Zealand Rules of Harness Racing ROBERT JOHN DUNN, Public Trainer & JOHN ROBERT DUNN, Open Horseman APPELLANTS RACING INTEGRITY UNIT (RIU) RESPONDENT Appeals Tribunal: Mr Murray McKechnie, Chairman & Professor Geoff Hall Present : Mr Paul Dale, Counsel for Messrs Dunn Mr Robert Dunn Mr Chris Lange, Counsel for RIU Mr Neil Grimstone, Manager Integrity RIU Dr Leo Molloy DECISION OF APPEALS TRIBUNAL OF JUDICIAL CONTROL AUTHORITY DATED THIS 1ST DAY OF JUNE 2018 1. INTRODUCTION 1.1 The Tribunal has heard an appeal from a decision of a Non-raceday Judicial Committee dated 28 March 2018. 1.2 Mr Robert John Dunn is a licensed public trainer and Mr John Robert Dunn is a licensed open horseman. Each faced four informations alleging breaches of the Prohibited Substance Rule 1004(1), (1A), (3), (3A) and (4) of the New Zealand Harness Rules of Racing. Those Rules are as follows: “Rule 1004(1) For the purpose of this rule a horse is presented for a race during the period commencing at 8.00 am on the day of the race for which the horse is nominated and ending at the time it leaves the racecourse after the running of that race. (1A) A horse shall be presented for a race free of prohibited substances. … (3) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules. (3A) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules. (3A) When a person is left in charge of a horse and the horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse and the person left in charge both commit a breach of these Rules. (4) A breach of sub-rule (1A), (2) or (3A) is committed regardless of the circumstances in which the .. prohibited substance came to be present in or on the horse. 1.3 The relevant Penalty Rule provides as follows: “Rule 1004(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to: (a) a fine not exceeding $20,000; and/or (b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.” 1.4 The informations faced by Messrs Dunn result from the Nelson Harness Racing Club’s meeting on 9 and 11 June 2017. On 9 June a horse trained by Mr Robert Dunn and in the charge of Mr John Dunn (Mr Robert Dunn not being present on course) named Rishi tested positive for caffeine following Race 2. The horse Hayden’s Meddle tested positive for caffeine following Race 7. The horse Billy Badger took part in Race 10 and following testing also tested positive for caffeine. Caffeine is a nominated prohibited substance. Each of the three horses, Rishi, Hayden’s Meddle and Billy Badger, had won their races and were subject to a mandatory disqualification under Rule 1004D or Rule 1004(8). On the second day of the meeting at Nelson, on 11 June, Billy Badger took part in Race 8 and won that race. He again tested positive for the prohibited substance caffeine. 2. HEARING BEFORE NON-RACEDAY JUDICIAL COMMITTEE 2.1 The RIU submitted an agreed Summary of Facts. That is set out in paragraph 7 of the decision under appeal. 2.2 The Non-raceday Judicial Committee (the Committee) recorded the submissions made for the RIU by Mr Grimstone and for Messrs Dunn by their lay advocate, Dr Leo Molloy. 3. THE APPROACH ON APPEAL 3.1 This appeal is by way of rehearing. 3.2 The Tribunal is guided by what was said in the Supreme Court judgment Kacen v Bashir (2010) NZSC112 at paragraphs 31 and 32 which are to the following effect: [31] The Court of Appeal discussed the application of the decision of this Court in Austin Nichols & Co Inc v Stichting Lodestar to the present kind of appeal. The Court correctly observed that on a general appeal of the present kind the appellate court has the responsibility of considering the merits of the case afresh. The weight it gives to the reasoning of the court or courts below is a matter for the appellate court’s assessment. We should add here that if the appellate court admits further evidence, that evidence will necessarily require de novo assessment and consideration of how it affects the correctness of the decision under appeal. The Court of Appeal was right to say that Courtney J had rather overstated the effect of Austin, Nichols when she indicated she should approach the appeal to the High Court “uninfluenced” by the reasoning of the Family Court. The High Court was required to reach its own conclusion, but this did not imply that it should disregard the Family Court’s decision. What, if any, influence the Family Court’s reasoning should have was for the High Court’s assessment. [32] But, for present purposes, the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of relevant consideration; or (4) the decision is plainly wrong. The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary. 4. THE CASE FOR THE APPELLANTS 4.1 Mr Dale submitted that there were three key facts which required consideration and which were not adequately addressed by the Committee. These facts are said to be: i There was evidence that the Appellants may not have been responsible for the administration of the prohibited substance caffeine and that this may have been done by some person bearing ill-will towards the Dunn stable or towards owners with horses in the stable. ii That the RIU acknowledged that neither of the Appellants had intentionally administered caffeine to the horses in order to gain any advantage. iii That the RIU had proposed that the offences be treated as a single breach when assessing penalty. 4.2 It was submitted that the factual background was very important and somewhat unique. There was evidence of a telephone discussion between two persons, one a former employee of the Dunn stable, which conversation was said to have involved discussion of the horses being drugged and that this discussion took place before any laboratory tests had become known. As a result of this telephone conversation it was argued that the Dunns may have been “framed”. Mr Dale, in correspondence with the RIU, proposed that charges not be laid or alternatively that there be no penalty other than disqualification of the horses. That course was followed in McInerney v Templeton 10 November 1999 Pankhurst J. The letter from Mr Dale to the RIU was followed up with a letter to the New Zealand Police and Mr Dale subsequently had discussions with a Christchurch based detective. Thereafter advice was given to Vodafone that Messrs Dunn would seek the telephone records in relation to the conversation said to have occurred in relation to the horses being drugged. An application was prepared for filing in the High Court seeking discovery against Vodafone. The Tribunal was advised that the Vodafone response to the request for information was that it no longer had the records as these were not kept beyond six months. Mr Dale emphasised that the commitment of resources and necessarily the expenditure of significant funds in an attempt to obtain non-party discovery was consistent with the Appellants’ belief that evidence favourable to their position might be available. 4.3 The legal submissions for the Appellants are discussed in paragraph 6 below. 5. THE HEARING BEFORE THE COMMITTEE 5.1 At the hearing before the Committee the Appellants were represented by the lay advocate, Dr Leo Molloy. Before the matter came before the Committee there had been extended discussions between Dr Molloy and Mr Grimstone, representing the RIU. The parties had essentially reached an agreed position. That position was as follows: i The RIU had endeavoured to identify any third party who may have been involved but could not do so. ii There was no evidence that either Mr Robert Dunn or Mr John Dunn had been responsible for administering the prohibited substance. iii The RIU would treat the multiple positive tests as a single event and would seek one penalty. It was the RIU submission that that penalty should start at around $4,000. iv The RIU would acknowledge the Appellants’ good records. The Tribunal observes that the RIU did not draw to the attention of the Committee the decision in the case of the RIU v Robert Dunn, John Dunn and Craig Smith dated 16 January 2017. That decision of a Non-raceday Judicial Committee arose out of events which occurred at Forbury Park Raceway in Dunedin on 23 June 2016. In response to the position taken by the RIU the stance taken by the Appellants before the Committee was as follows: i They would accept the presenting charges. ii They would deny any responsibility for the presence of the prohibited substance in the four horses. iii That the decision of the Non-raceday Judicial Committee in the case of RIU v Larsen 16 January 2017 should be the benchmark for setting the level of penalty. In that case the fine imposed was $200. Further reference will be made to the decision of the Non-raceday Judicial Committee and RIU v Larsen later in this decision. 5.2 The Committee delivered a comprehensive decision. The conclusion reached by the Committee was that there should be a total fine of $14,000, and it was appropriate that Mr Robert Dunn and Mr John Dunn each be fined $7,000. In summary, the most significant findings of the Committee are now set out: i That there was no evidence to confirm that there had been conduct by third parties involved in framing the Appellants or as it is sometimes known nobbling of the horses. ii The decisions in Burrows and McGrath which were put forward by Dr Molloy were not accepted as valid comparisons. iii Dr Molloy invited the Committee to dismiss the charges against Mr John Dunn. This the Committee rejected and pointed out that Mr Dunn had accepted his responsibility by way of his guilty pleas. The Committee drew attention to the fact that Mr John Dunn was the person “left in charge of a horse” and further that the horses were “presented to race in contravention of Rule 1(A)”. iv The Committee accepted that the offences were what is known as presentation offences rather than the more serious administration offences. The Committee did not accept the RIU submission that the nature of the prohibited substance and the surrounding circumstances should lead to a conclusion that there had been one breach for the purposes of setting penalty. v The Committee was not prepared to accept that the loss of stake money as a result of the horses’ disqualification, said to be at considerable cost to Messrs Dunn, was a significant matter in mitigation. vi The Committee accepted that culpability for breach of the prohibited substance rule can vary greatly but the Committee’s assessment (paragraph 47) was that there were multiple failings and that this put the level of offending at above mid-range. vii The Committee rejected the submission by Dr Molloy that the Dunn brand had been damaged beyond repair. The Committee recognised that the Dunns are longstanding industry participants but pointed out that the circumstances of how these horses came to be presented with a prohibited substance would not lead to damage of the licence holder’s reputation to the extent submitted by Dr Molloy. viii In paragraph 54 the Committee made reference to the RIU submission seeking a total fine of $4,000. The Committee made clear that this was considered far too lenient when the specific circumstances of the offending were taken into consideration. The Committee expressed the view that a fine at that level for eight breaches of the Prohibited Substance Rule would fail to have regard to the well-recognised sentencing principles and which principles were put forward by the RIU. ix The Committee gave consideration to the recent decisions in RIU v KD Townley, RIU v BR Negus, RIU v Edmonds and RIU v Brosnan. x The position of the Committee is succinctly set out in paragraph 59 of the decision which is as follows: We maintain the view that the position of the RIU still fails to have regard to the multiple nature of these breaches. While the RIU indicate that they could not rule out third party involvement, we make the observation that that is often a consideration in presentation breaches where the source of the prohibited substance is not known. In this particular case, while a possibility, we are not prepared to make such a definitive finding. xi The Committee took the view that it was appropriate to apply the $8,000 JCA Penalty Guideline figure in respect of each of the breaches on 9 June 2017. In relation to the second breach for Billy Badger on 11 June 2017 the Committee applied a figure of $4,000. This led to a starting point of $28,000. The Committee then applied what it described as “an appropriate adjustment to reflect the circumstances surrounding the breaches in accordance with the totality principle” and reduced the figure from $28,000 by just over one third to $18,600. xii In considering mitigation the Committee applied a discount of approximately 25 per cent. This was referenced to the previous record of the Appellants. As earlier noted the decision of the Non-Raceday Judicial Committee in RIU v Robert John Dunn and Craig Smith of 16 January 2017 was not drawn to the attention of the Committee. xiii The decision of the Non-Raceday Judicial Committee in RIU v Larsen 16 January 2017, which decision figured prominently in Mr Dale’s submissions, was not drawn to the attention of the Committee. 6. LEGAL SUBMISSIONS FOR APPELLANTS 6.1 It was said for the Appellants that it was difficult to follow the reasoning of the Committee in rejecting the RIU position that the charges should be viewed as one breach for the purposes of fixing penalty. 6.2 It was submitted that there was inadequate recognition by the Committee of the curious circumstances which suggested that other persons may have been involved. In the Tribunal’s view the Committee was right to emphasise that no conclusive evidence had been obtained to support the involvement of other parties. It was submitted that the circumstances around the possible involvement of other parties should have led to a comparison with the decision in RIU v Larsen. In the first place the Larsen decision was not drawn to the attention of the Committee. Secondly, the factual position in Larsen was significantly different. In that case the Non-Raceday Judicial Committee had before it evidence from which it was able to draw a compelling inferential conclusion that Mr Larsen had nothing whatever to do with the administration of the prohibited substance Ketoprofen. 6.3 Particular emphasis was placed upon the cooperation from the Appellants and the attempts made on their behalf to establish whether there was involvement of others. That cooperation was expressly acknowledged in the RIU submissions and it was contended for the Appellants that there was not adequate recognition of this in the decision under appeal. 6.4 The early pleas by the Appellants were emphasised by Mr Dale. 6.5 Attention was drawn to the fact that the penalty sought by the RIU was a fine of $4,000 whereas the penalty ultimately imposed was more than three times the sum sought by the prosecuting authority. This Tribunal recognises that a judicial or quasi judicial body is not bound to accept the penalty proposed by the prosecuting authority, however it is unusual but not unique for the penalty that is imposed to be significantly greater than that sought by the prosecutor. 6.6 In answer to a question from the Tribunal, Mr Dale advised that if the level of fine imposed had been as submitted by the RIU no appeal would have been lodged. 6.7 Mr Dale was reluctant to put forward an appropriate figure but made it plain to the Tribunal that a figure close to that put forward by the RIU was appropriate and that necessarily that would involve a significant reduction from the figure arrived at by the Committee. 7. THE POSITION OF THE RIU 7.1 The submissions filed by Mr Lange drew attention to a number of decisions which emphasised the significant obligation of licensed persons to ensure that racing was drug free. The most recent New Zealand authority is Justice 2012 a decision of the Appeals Tribunal. This was a high profile case following a positive test for a prohibited substance by the horse Smokin Up, the winner of the Interdominion Grand Final at Alexandra Park. 7.2 The RIU submissions correctly pointed out that the Prohibited Substance Rule does not require the investigation to establish how the substance came to be in the horse’s system. That is expressly recognised by Rule 1004(4) and by a number of judicial decisions. Further, the Rule requires licensed persons to take steps to ensure, so far as they are able, that there is no inadvertent administration or that the horses are not nobbled by some third party. 7.3 The RIU submissions acknowledge that the Committee imposed a penalty significantly higher than that submitted by the RIU. The submissions go on to point out that the Committee was not bound by the RIU submission and that it was for the Committee to make its own determination of the appropriate level of fine. 7.4 In relation to the appropriate approach that is to be taken in setting a penalty under the Rules of Harness Racing, the submissions make extensive reference to the judgment of the Supreme Court in Z v Complaints Assessment Committee [2009] 1NZLR1. In essence, that judgment emphasises that punishment is not the primary purpose of disciplinary proceedings, rather those proceedings are to protect the public who may have contact with the profession or industry where the breach of standards is said to have occurred. The RIU submissions drew attention to the fact that the principles that are set out in the Supreme Court judgment in Z v Complaints Assessment Committee are now expressly included in the Rules of Procedure for Judicial Committees and Appeals Tribunals under the New Zealand Rules of Harness Racing by reference to clause 5 which came into effect on 27 August 2015. 7.5 The RIU submissions referred to a number of decisions which bear some comparison. These included RIU v Edmonds 31 March 2016, RIU v Negus 20 March 2018, RIU v Brosnan 13 February 2018 and RIU v Larsen 16 January 2017. The submissions rightly point out that the facts of Larsen were unique and bear little or no meaningful comparison with the events under consideration here. 7.6 Reference is made in the RIU submissions to the decision in RIU v Robert Dunn, John Dunn and Craig Smith of 16 January 2017, which decision, as earlier observed, had not been drawn to the attention of the Committee. On that occasion Mr Robert Dunn was fined $4,000 and Mr John Dunn $2,000. It was said for the RIU that it would be open to the Tribunal to infer that those fines had not brought home to the Appellants the high standards expected of them in harness racing. 7.7 The RIU submissions conclude by observing that the Rules place the obligation on the trainer and the person in charge to ensure that a horse is free of prohibited substances and that given the number of breaches that occurred and by reference to relevant authorities, the penalty which the Committee set was within the range available to it. 7.8 The RIU submissions do not meaningfully address the reasoning behind the submission which the RIU put to the Committee that an appropriate fine – being a single fine in respect of both Appellants – was the figure of $4,000. 8. DISCUSSION 8.1 The Tribunal has concern that with reference to the three horses, Rishi, Hayden’s Meddle and Billy Badger, that tested positive following racing on 9 June 2017, the Committee adopted the $8,000 JCA Penalty Guidelines figure in each case thus reaching a figure of $24,000. The Tribunal considers that the breaches were at the lower end of mid-range. In those circumstances the Tribunal believes that it would have been more appropriate given that all the breaches took place on the same day at the same racecourse to have adopted a figure of $6,000 in respect of the three horses, Rishi, Hayden’s Meddle and Billy Badger. The figure for Billy Badger on 11 June might appropriately been $2,000. These figures just spoken of would lead to an initial starting point of $20,000. In paragraph 60 of the Committee’s decision there is an adjustment. There is reference to what is described as “an appropriate adjustment to reflect the circumstances surrounding these breaches in accordance with the totality principle…” The figure which the Committee adopted was just over one third. The Tribunal considers that the adjustment was appropriate. Adopting the same approach here, a discount of just a little over one third of, say, $7,000 would reduce the figure earlier spoken of being $20,000 to $13,000. 8.2 With reference to mitigation, the Committee applied a discount of approximately 25 per cent. In paragraph 61 of its decision the Committee expressly recognised the early admission of the offending by the Appellants, their cooperation and their previous records, albeit through no fault of the Committee there was no reference to the decision of 16 January 2017 spoken of earlier involving both Appellants and a member of their staff, Craig Smith. 8.3 In considering an appropriate allowance for mitigation the Tribunal considers that there might properly have been greater recognition of the position arrived at by the RIU and the Dunns’ advisors, Dr Molloy and Mr Dale. The extent to which the Appellants cooperated with RIU and the extent to which the RIU endeavoured to follow up the Appellants’ concerns is a situation for which both parties should receive recognition. That level of cooperation is seen all too infrequently within harness racing and the other two codes over which the JCA has authority. An appropriate figure to measure mitigation in the circumstances outlined would have been 40 per cent. That results in the figure of $13,000 arrived at in paragraph 8.1 above being reduced to $7,800. As did the Committee, the Tribunal considers that the fines should be shared equally between Messrs Robert Dunn and John Dunn. Each will be fined the sum of $3,900. 9. COSTS 9.1 At the conclusion of the hearing of the appeal in Auckland on Monday, 28 May 2018 the Tribunal indicated that it would invite submissions from both parties on the question of costs. That the Tribunal now does. An entirely preliminary view is that given the circumstances of this case and the outcome each of the parties might reasonably be required to meet their own costs and each make an equal contribution towards some costs in favour of the JCA. As both experienced counsel will know, the figure that is set for JCA costs is not commonly an indemnity figure but simply a contribution towards the costs of setting up and conducting the hearing. 9.2 Submissions on the issue of costs are sought from both parties within seven (7) working days of receipt of this decision: such submissions not to exceed three pages. DATED this 1st day of June 2018 Murray McKechnie Chairman (signed pursuant to the Fifth Schedule to the New Zealand Rules of Harness Racing)     Harnesslink Media

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