Smoken up

[DAZZA]

Disqualified from inter.

[Starship Captain]

Justice has been done:)

[aussiebreno]

Good timing from my point of view. Will get washed away in the media with the Melb Cup being so prominent.

[triplev123]

To get dumped from such a race for DMSO is ridiculous IMO, and further to that it goes directly to the greater pressing need for establishing thresholds for therapeutics etc here in Oz but...we move on. Genuinely sorry to hear that news Lance. In this day & age that is crazy.

[gutwagon]

Any word on the penalty for the trainer yet ?

[triplev123]

....Lance has been sentenced to have dinner with Mick Guerin every Friday night for 12 months after which he must stand in the bar at Addington & read aloud from the collected works of Frank Marrion's Breeding Columns in the NZHRW.

Have the JCA no mercy in their hearts?

[admin]

....Lance has been sentenced to have dinner with Mick Guerin every Friday night for 12 months after which he must stand in the bar at Addington & read aloud from the collected works of Frank Marrion's Breeding Columns in the NZHRW.

Have the JCA no mercy in their hearts?

As someone who has uploaded a fair amount of those columns to Harnesslink, the JCA have gone too far this time.

[triplev123]

The JCA should be disbanded. It is a JOKE. What I cannot understand is the inconsistent nature of their rulings.
How can they, on one hand, give someone a fine for Clenbuterol, a performance enhancing beta-2 agonist...and then see to it that another loses an ID Final for something as pedestrian and IMO non-performance enhancing as DMSO, a polar aprotic solvent?
Surely if nothing else then common sense dictates that it should have been the other way around and I'm pretty sure anyone who knows anything about those substances would agree with me.

[Flashing Red]

How can they, on one hand, give someone a fine for Clenbuterol, a performance enhancing beta-2 agonist...and then see to it that another loses an ID Final for something as pedestrian and IMO non-performance enhancing as DMSO, a polar aprotic solvent?
Surely if nothing else then common sense dictates that it should have been the other way around and I'm pretty sure anyone who knows anything about those substances would agree with me.

Yes. And I've used both substances on a near daily basis in a racing jurisdiction where it was allowed.

[triplev123]

You know where the NZ/JCA precedent to this lies Tahn?
The one where G. Rogerson lost a Harness Jewels Final there a few years back. I can't remember the name of the horse nor the year but I am almost certain it also got a DMSO overage and duly lost the race.
Apparently upholding that ridiculous precedent with a similarly ridiculous finding is more important than a factual, level-headed assessment of the actual performance enhancing capabilities of the substance that is involved...with an outcome that is calibrated accordingly.
The fact that Rogerson and now Lance Justice have both lost major races as a result of DMSO positives whilst other trainers have simply been fined for substances that are actual/demonstrated/well & truly documented performance enhancers....well, it is nothing short of A-B-S-U-R-D.
If faced with something similar one would hope that the various regulatory persons here in Australia wouldn't make the same 'punishment not exactly befitting the crime' mistakes that the JCA does. The Law, in this instance, is most definitely an Ass.

[Flashing Red]

There is a poster on here called TeeCee I think, I assume they are connected with the JCA in some way and they always provide informative on the topic of NZ precedents and positive swabs. I was hoping they would make an appearance since the decision.

Other than that, despite how passionate I am on this topic and out of respect for the connections of SU and ITMQ that is it from me :)

[triplev123]

I don't think you should waste a good crisis Tahn. Whether it was Smoken Up or ITMQ or any other horse that had come up with a DMSO positive and subsequently lost such a race...the argument remains the same. It is a ridiculous ruling by a group that apparently sees the maintenance of precedent as a more pressing issue than the application of common sense to an argument that, should it not be addressed and settled soon, will invariably crop up and continue to crop up well into the future.

[Don Corleone]

You know where the NZ/JCA precedent to this lies Tahn?
The one where G. Rogerson lost a Harness Jewels Final there a few years back. I can't remember the name of the horse nor the year but I am almost certain it also got a DMSO overage and duly lost the race.
Apparently upholding that ridiculous precedent with a similarly ridiculous finding is more important than a factual, level-headed assessment of the actual performance enhancing capabilities of the substance that is involved...with an outcome that is calibrated accordingly.
The fact that Rogerson and now Lance Justice have both lost major races as a result of DMSO positives whilst other trainers have simply been fined for substances that are actual/demonstrated/well & truly documented performance enhancers....well, it is nothing short of A-B-S-U-R-D.
If faced with something similar one would hope that the various regulatory persons here in Australia wouldn't make the same 'punishment not exactly befitting the crime' mistakes that the JCA does. The Law, in this instance, is most definitely an Ass.

There was also a case last season down my way whereby a horse was disqualified due to the trainer being allocated a box at a course where the local on-course trainer had been using DMSO. Subsequently the horse returned a positive. It was proved beyond doubt that the trainer had not broke any rules - however his horse was disqualified and he was fined. The most stupid ruling I had heard of until this one to Lance and SU.
I have kept out of the debate over this simply because it makes my blood boil. The head of the RIU has a ego as big as his head and other parts of his anatomy.

[aussiebreno]

There was also a case last season down my way whereby a horse was disqualified due to the trainer being allocated a box at a course where the local on-course trainer had been using DMSO. Subsequently the horse returned a positive. It was proved beyond doubt that the trainer had not broke any rules - however his horse was disqualified and he was fined. The most stupid ruling I had heard of until this one to Lance and SU.
I have kept out of the debate over this simply because it makes my blood boil. The head of the RIU has a ego as big as his head and other parts of his anatomy.
Is there something you're not telling us?

[teecee]

It is of no consequence to the JCA what DMSO does or its effects on the horse.
It is of no consequence to the JCA what Caffeine or Bute does or its effects on the horse.
These are issues for the rule formulators i.e. HRNZ, The rules are non drug-specific. So JCA is not to differentiate between them be it DMSO, caffeine, clenbuterol or any other specific.
The rule says these and others are prohibitted substances and horses will not race or be presented to race with this substance in or on them.The swab analyses show that a substance listed as prohibited by the lawmakers was detected.That means that on the surface the rule has been breached. The RIU lay charges against the alleged rule breachers.
It is then that the JCA INDEPENDENTLY hear the evidence and determine if THE RULE HAS BEEN BREACHED.If so then determine penalty. In the case under discussion the breach has been proved but contrary to the views of some, penalties have not been yet determined.
If u have yet to do so the read moer at www.jca.org.nz (http://www.jca.org.nz)

[teecee]

In time you will see that they are purely consistent.
They deal with the rules as written by others in an INDEPENDENT manner. We have two very similar scenarios.
Charges bought under the same rules.. Horses presented to race with substances determined by other (not JCA) prohibited in the system.
One guity plea one not guilty plea
Two guilty findings.
Guilty plea draws fine and disqualification. Not guilty plea i suspect will draw fine along with premium for race status Gp1 as called for in the rules, costs in line with a hearing over 3 days which will far away outdo the fine and disqualification of horse. This is as yet undetermined. probably 3weeks away.
More consistent than OZ where you have stewards as prosecutor, jury and judge.
Having dealings with both I know which I prefer.

[teecee]

Under the rule from which this episode arose there is a threshold for DMSO set at 15mg/litre urine.
Primary sample analyse for an average concentration of 25mg/lt.
Secondary sample tested in Oz at connections request averaging 25mg/ltre.

A prima facie case established under a absolute liability rule of the controlling authority..!!

[Flashing Red]

More consistent than OZ where you have stewards as prosecutor, jury and judge.
Having dealings with both I know which I prefer.

Thanks for your replies. :) I was hoping you would make an appearance and I enjoy your posts :)

You are right about OZ but you once told me that the NZ Courts have stipulated they will not hear racing appeals. It is for that reason why I would prefer the Australia system, because even though stewards are the prosecutor/judge/jury as you say, you always have the Racing Appeals Tribunal and then appeals from the RAT to the actual court system (or so I've been told, not many cases get past the RAT here).

[triplev123]

Hey Tony, amongst other things doesn't the fact the initial/pre race sample was somehow lost/destroyed/disposed of...which quite obviously prevented any opportunity on behalf of the defence to also have it tested...bother you at all? That aspect alone would have easily been more than enough to have the case thrown out in any Court of Law in Australia.
To suggest that the Oz Stewards are prosecutor, jury & judge is simply incorrect, it displays a clear lack of understanding of how the system works here. Australian Participants who feel they have been wronged at an Industry Regulatory level can take it further by seeking redress in Court, unlike their NZ counterparts. The Rules of Racing here in Australia do not usurp the Law.
The fact that you guys, for whatever reason, treat all positives the same and apparently regardless of the substance, is nothing short of absurd btw.
Passing the buck doesn't make it right. In taking that approach, both HRNZ and yourselves are wrong, regardless.

[teecee]

The destroyed prerace sample was for TCO2 testing.that sample would have been as it always has been disposed of long before any analysis of the urine swab samples. As they said at the hearing the defence was happy with the manner of the testing. They knoew that the TCO2 sample would not be available for drug testing as is the norm. It can hardly be a miscarriage of justice when the procedures and protocols set out to operate in NZ are met. Remember that all rules are not the same everywhere and as NZ trainers have to live with the way things are done in Oz when they go there.
Please correct me if I am wrong but do the stewards not view the race, lay the charges and then sit in judgement of the charges they have laid.. New zealand does have an appeal process but it is seldom used and when it is they seldom vary the judgement of the JCA. the members of the JCA tend to be lawyers and look at the issues in a legalese wayso I guess their judgements sre generally considered Fair. With such a high profile case as this the panel is made up of its most senior members a Queens Counsel and emeritus professor of Law.
Nz rules of racing do not as you put usurp the law either. They are part of the law written into the racing Act 2003. IMO This is why the courts tend to take a hands off approach to interfering in racing matters. They recognise that racing has its own judiciary which has to uphold the act through the rules.

Hey Tony, amongst other things doesn't the fact the initial/pre race sample was somehow lost/destroyed/disposed of...which quite obviously prevented any opportunity on behalf of the defence to also have it tested...bother you at all? That aspect alone would have easily been more than enough to have the case thrown out in any Court of Law in Australia.
To suggest that the Oz Stewards are prosecutor, jury & judge is simply incorrect, it displays a clear lack of understanding of how the system works here. Australian Participants who feel they have been wronged at an Industry Regulatory level can take it further by seeking redress in Court, unlike their NZ counterparts. The Rules of Racing here in Australia do not usurp the Law.
The fact that you guys, for whatever reason, treat all positives the same and apparently regardless of the substance, is nothing short of absurd btw.
Passing the buck doesn't make it right. In taking that approach, both HRNZ and yourselves are wrong, regardless.

[teecee]

What you have, or NZ has is a list of what is called prohibited substances.
All prohitied substances are categorised together within the rule.
It is a breach of the prohibited substance rule that the JCA panel has to rule on. It is not a rule that specifys a particular drug.
There are other rules which deal with specific drugs along with administering etc. They are more specific, require greater proof and naturally carry much greater penalties.
Put it this way....A judge making a decision on a charge of drink driving. The charge is a breach of the transport laws.The law specifies exceeding a figure of concentration of alcohol in the blood or breath. It's not relevant to the judge in determing guilt whether the substance is scotch, VB tooheys or whatever. Conviction and penalty is set by how much rather than what brand.
The JCA don't determine the charge they determine innocence or guilt to whatever charge is placed before them.
e The fact that you guys, for whatever reason, treat all positives the same and apparently regardless of the substance, is nothing short of absurd btw.
Passing the buck doesn't make it right. In taking that approach, both HRNZ and yourselves are wrong, regardless.[/QUOTE]

[Flashing Red]

Put it this way....A judge making a decision on a charge of drink driving. The charge is a breach of the transport laws.The law specifies exceeding a figure of concentration of alcohol in the blood or breath. It's not relevant to the judge in determing guilt whether the substance is scotch, VB tooheys or whatever. Conviction and penalty is set by how much rather than what brand.

Yes but there isn't a blanket punishment for drink driving. There are maximum penalties listed (and for some offences, minimum penalties). Within the stipulated limits, judges/magistrates have a discretion as to what someone's punishment should be. There are aggravating and mitigating factors affecting the punishment given. It's not like EVERY drink driver gets disqualified from driving for 6 months and fined $2,000.

I do not profess to be an expert on HRNZs rules or the JCAs decisions. I am thankful that you popped on here because I enjoy your posts. :)

[teecee]

True and this is how the panel will assess penalty. The rules set maximum levels of penalty including fines and/ or suspension and/ or disqualification. I cannot remeber anybody disqualified under the rules of the current case.
They have a starting point penalty based on what they determine to be a level of seriousness of the breach. they will then use any factors they consider to be mitigating to reduce the penalty then consider any aggravating factors to raise the level raching a penalty taking all factors into account including all submission from prosecutor and defence counsel. which they will vary
Yes but there isn't a blanket punishment for drink driving. There are maximum penalties listed (and for some offences, minimum penalties). Within the stipulated limits, judges/magistrates have a discretion as to what someone's punishment should be. There are aggravating and mitigating factors affecting the punishment given. It's not like EVERY drink driver gets disqualified from driving for 6 months and fined $2,000.

I do not profess to be an expert on HRNZs rules or the JCAs decisions. I am thankful that you popped on here because I enjoy your posts. :)

[p plater]

teecee. Evidence was the TCO2 blood was destroyed AFTER the first urine tests

[Flashing Red]

But the horse automatically looses the race right - no matter how much (of whatever substance it is) in their system? Ie it could be a pharmacologically (sp?) inactive (ie minute) trace in their system, ie non performance enhancing, but the horse looses the race. An example of this is someone who gets a bute positive despite the substance being administered 6 days beforehand (chemists can tell approximately when a substance is administered from the state of a drug's break down). It has no effect on a horse after 12 hours. Do the rules not take these sorts of factors into account? (A serious not smart ass question) :)

[p plater]

Flashing Red you are correct......interesting read at http://www.netpets.com/horses/healthspa/guilty.html

[teecee]

I hope that by clearing up a few facts your blood temperature may drop a little.
The drug in question was RANITIDINE rather than DMSO.
The trainer pleaded guilty to the charge relative to negligence in not ensuring the feed bin was clean leaving the JCA to impose a minimal fine and disqualify the horse as is mandatory with no discretion. I was surprised the on course trainer was not charged but I guess he had broken only club / raceway rules of not ensuring his boxes were clean to the required standard.
The charges were laid by HRNZ in the days prior to the creation of the RIU so the RIU's boss who by the way for those who don't know is a true blue okker ego etc is hardly a factor.

There was also a case last season down my way whereby a horse was disqualified due to the trainer being allocated a box at a course where the local on-course trainer had been using DMSO. Subsequently the horse returned a positive. It was proved beyond doubt that the trainer had not broke any rules - however his horse was disqualified and he was fined. The most stupid ruling I had heard of until this one to Lance and SU.
I have kept out of the debate over this simply because it makes my blood boil. The head of the RIU has a ego as big as his head and other parts of his anatomy.

[teecee]

EXcert from the statement of finding by JCA panel.....
7.1 For those reasons we are satisfied the charge brought against Mr Justice under R.1004 (2) has been proved and "Smoken Up" was connected with a breach of R.1004 (1) and (2) when it ran in and won the Pacers Grand Final at the Inter Dominion Championships on 8 April 2011, for the purposes of R.1004 (8).
A finding against the horse under rule 1004(8) requires the committee with no discretion (MANDATORY) to disqualify the horse from the said race.This is why people say he is allready disqualified when the penalty phase is yet to begin as submissions on penalty are sought from both parties.
Excert from panel findings
7.3 We now require submissions from Counsel as to penalty and costs which will include the costs of the Judicial Control Authority which Mr Lange will have responsibility for. To that end the following timetable is to apply:
(i) Mr Lange is to file and serve on Ms Thomas his submissions on penalty and costs within one week of the date of this Decision;
(ii) Ms Thomas will have a further week from the date of receipt of Mr Lange's submissions to file her submissions in reply;
(iii) Leave is reserved to apply if for any valid reason there is difficulty with that timetable.

As far as DMSO is concerned there is a threshold 15mg/ltre urine and any excess to that threshold is a breach of the rule. drugs on the list have varing thresholds as well as withholding periods.
The list is made up by experts in HRNZ, NZTR, NZEVA (equine vet assn) and substances on that list make up the prohibited substances rules which to answer your question you breach at your peril.

there is also discretion to ban the horse from competing for a period upto and including life but that discretion has to my knowlwdge never been applied.
But the horse automatically looses the race right - no matter how much (of whatever substance it is) in their system? Ie it could be a pharmacologically (sp?) inactive (ie minute) trace in their system, ie non performance enhancing, but the horse looses the race. An example of this is someone who gets a bute positive despite the substance being administered 6 days beforehand (chemists can tell approximately when a substance is administered from the state of a drug's break down). It has no effect on a horse after 12 hours. Do the rules not take these sorts of factors into account? (A serious not smart ass question) :)

[teecee]

That is true as is standard practice and well before results of any swabs are known.
TCO2 blood samples are not as a matter of course part of the post race swabbing protocols. and there early destruction is normal process.
To test the blood in this instance would be an extaordinary procedure and IMHO possibly subject to admissable evidence challenge. Maybe / maybe not. An issue for the panel but they were not required to rule.
It should be noted that the defence had no query or challenge to how the sampling was done and handled for processing.

teecee. Evidence was the TCO2 blood was destroyed AFTER the first urine tests

[teecee]

Muscle and Power in 2008 2-y-o Trotters Ruby

You know where the NZ/JCA precedent to this lies Tahn?
The one where G. Rogerson lost a Harness Jewels Final there a few years back. I can't remember the name of the horse nor the year but I am almost certain it also got a DMSO overage and duly lost the race.
Apparently upholding that ridiculous precedent with a similarly ridiculous finding is more important than a factual, level-headed assessment of the actual performance enhancing capabilities of the substance that is involved...with an outcome that is calibrated accordingly.
The fact that Rogerson and now Lance Justice have both lost major races as a result of DMSO positives whilst other trainers have simply been fined for substances that are actual/demonstrated/well & truly documented performance enhancers....well, it is nothing short of A-B-S-U-R-D.
If faced with something similar one would hope that the various regulatory persons here in Australia wouldn't make the same 'punishment not exactly befitting the crime' mistakes that the JCA does. The Law, in this instance, is most definitely an Ass.

[p plater]

Oh dear teecee, it appears you got it wrong here. The panel were very interested in the pre race blood and they did question in detail the sampling process via Thomas Tobin . You better check reports from Wellington press who were present during the entire hearing and heard all the evidence.

[Don Corleone]

I hope that by clearing up a few facts your blood temperature may drop a little.
The drug in question was RANITIDINE rather than DMSO.
The trainer pleaded guilty to the charge relative to negligence in not ensuring the feed bin was clean leaving the JCA to impose a minimal fine and disqualify the horse as is mandatory with no discretion. I was surprised the on course trainer was not charged but I guess he had broken only club / raceway rules of not ensuring his boxes were clean to the required standard.
The charges were laid by HRNZ in the days prior to the creation of the RIU so the RIU's boss who by the way for those who don't know is a true blue okker ego etc is hardly a factor.

I stand corrected about the Ranitidine but I think you may find that lines were blurred in the early in the process where both Ranitidine and DMSO were mentioned.

[teecee]

Excerts sec 6.17 and 6.18 from Panel's decision

6.17 The final matter we need to refer to is the submission by Ms Thomas that the Informant has failed to prove its case because it should have directed the New Zealand Racing Laboratory Service to test the blood sample taken from "Smoken Up" at 8:48 pm on 8 April 2011 for DMSO in order to confirm the results that had been obtained from the analysis of the urine sample taken at 10:10 pm the same evening. As recorded previously the blood sample taken at 8:48 pm was for the purpose of TCO2 testing. Ms Thomas' submission is based on the evidence of Professor Tobin that blood is a superior forensic sample over urine for the purpose of testing DMSO levels and that given what she described as the various flaws established in relation to the taking of the urine sample and its analysis the blood sample should have been tested.


6.18 We do not accept the submission. In the first place the blood sample taken at 8:48 pm was taken sometime prior to "Smoken Up" being presented for the Pacers Grand Final which started at 9:43 pm and therefore may not have been indicative of the DMSO level of the horse at the time of presentation for the race. Secondly the blood sample, in all probability was discarded after it had been tested for TCO2 and there was no clear evidence it was available to be tested for DMSO after the results of the analysis of the urine sample became available. Thirdly there is no requirement in the Rules or Regulations for the results of analyses of urine samples to be checked against blood samples. The Prohibited Substance Regulations are clear that a urine sample containing DMSO at a mass concentration in excess of 15 mg/L is a Prohibited Substance under the Rules and there is no further requirement for confirmation of that DMSO level by way of a blood sample.


Oh dear teecee, it appears you got it wrong here. The panel were very interested in the pre race blood and they did question in detail the sampling process via Thomas Tobin . You better check reports from Wellington press who were present during the entire hearing and heard all the evidence.

[teecee]

I just hope your blood temp is down as I wouldn't want that ego to have u following the ppath of one Rob McAnulty eh!!


I stand corrected about the Ranitidine but I think you may find that lines were blurred in the early in the process where both Ranitidine and DMSO were mentioned.

[p plater]

Thanks teecee, there is some interesting comments there.
What were the various flaws in taking the urine?
Is blood a superior test for DMSO?
Surely the pre race blood at 8.48 was "taken prior" to race at 9.43...seems a funny comment
Are they saying that "presented to race" is the race start time?
Why do horses have to be there an hour before their race or earlier, if that is not "presented to race" ?
No requirement for blood to be tested under the Rules ........In the overall scheme of things maybe the Rules should be revisited. Forget this particular case but shouldn't all trainers have available to them every means to clear their name. There must be plenty of cases where the trainers are not guilty but are not permitted under the rules to present their case.
All trainers must be on egg shells for their future.
Its a bit like saying in Rugby..." I've got the ball and will score a try because under the rules you are not allowed to tackle me"
Love to hear trainers comments on this.

[Don Corleone]

I just hope your blood temp is down as I wouldn't want that ego to have u following the ppath of one Rob McAnulty eh!!

Hey Teecee - I won't leave voicemail or send emails like Rob:o stop me if I do:D

[teecee]

[QUOTE=p plater;12583]Thanks teecee, there is some interesting comments there.
What were the various flaws in taking the urine?

I will try to answer these with direct quote fm panels findings.......

6.13 We have already recorded we were satisfied from the evidence that the urine sample taken from "Smoken Up" by Dr Grierson and the fashion in which it was packaged for despatch to the laboratory for analysis conformed with the requirements of the Swabbing Instructions in the Regulations. In her submissions Ms Thomas has submitted there was what she called a fundamental error in the entire sampling procedure in that there was a failure to have two control samples taken. This submission was based on the opinion of Professor Tobin that the analysis of the reserve sample by the QRSC was incomplete because there was no analysis of the control sample. Professor Tobin said the referee analysis was incomplete because it did not "replicate" the original analysis. Ironically Dr Lauren in his evidence was critical of the analysis of the reserve sample by the QRSC for precisely the opposite reason, namely because he regarded it as "…just a third replicate of the duplicate results already produced in Auckland". As an alternative submission Ms Thomas contended the untested part of the control sample remaining after the New Zealand Racing Laboratory Services Laboratory had completed its analysis should have been sent to the QRSC for analysis along with the reserve sample. Both that failure and the failure to take two control samples she submitted were fatal to the Informant's case. We do not accept that submission. The Swabbing Instructions in the Regulations allow only for the taking of one control sample and the sending of the reserve sample only for analysis at the request of the owner or trainer of the horse concerned. In any event as Dr Grierson explained in his evidence once the seals on the control sample have been broken for the purpose of the analysis carried out in his laboratory, the forensic integrity of the residue of the control sample could not be guaranteed within the process of transporting it to Australia. We do not accept these failures, as Ms Thomas characterised them, were in fact failures in the sense she sought to portray them, or that they were fatal to the Informant's case as she submitted.

Is blood a superior test for DMSO?
5.6 Professor Tobin also noted in his evidence that in North America it was standard procedure to have blood samples taken to test for DMSO as blood was considered to be a superior forensic sample over urine. He said this was due to the fact pH levels in urine and the volume of urine taken could influence concentrations of detected substances in the urine.

Surely the pre race blood at 8.48 was "taken prior" to race at 9.43...seems a funny comment

Are they saying that "presented to race" is the race start time?
3.24 The next issue raised by Ms Thomas relates to the interpretation of R.1004 (1) and specifically when, for the purposes of that Rule, a horse is presented for a race.

3.25 In her initial submissions, after noting the word "presented" is not defined in the Rules, for a range of reasons we do not need to detail here, Ms Thomas submitted that a horse was presented for a race when it "…came to the racecourse or at the very latest when (it) raced". However in her later submissions of 8 September 2011 Ms Thomas took a different position and submitted by reference to Regulation 15 (1) of that part of the Harness Racing Regulations dealing with Programming Conditions – General under the heading Race Meeting Attendance, that a horse was presented for racing when it came to a racecourse in terms of the requirements of that Regulation. Subject to specified variations, Regulation 15 requires the trainer of a horse engaged in a race at a totalisator race meeting to ensure the horse is available in the official stabling complex or its allocated stall at least 1 hour prior to the advertised starting time of the first race of the meeting where it is entered in that race or where it is entered in a subsequent race, at least 90 minutes prior to the advertised starting time of that race. Accordingly in Ms Thomas' submission, when a horse is presented for a race under R.1004 (1) will depend on which race it is entered in. No later than 1 hour before the first race if entered to race in that race, otherwise no later than 90 minutes before the start of any other race for which the horse is entered. Later in her submissions by reference to the particular facts of this case, Ms Thomas appeared to take a third position namely that a horse is presented for a race when it comes to the racecourse.

3.26 We do not accept those interpretations of R.1004 (1). Given the purpose of the Rule is to ensure that horses race free of Prohibited Substances the logical point of presentation for a race which best achieves that objective is when the horse lines up for the start and begins to run in the race in which it is entered. In our view such an interpretation is consistent with the natural and ordinary meaning of "presenting" a horse for a race and is contextually consistent with the objectives of R.1004 (1). Adopting the interpretations advanced by Ms Thomas would lead to the result that any ingestion or administration of a Prohibited Substance to a horse after it came onto the racecourse, or within the period of 1 hour before it was to run in the first race or 90 minutes before it was to run in any other race, would not amount to a breach of R.1004 (1). Such a result would undermine entirely the clear purpose and intent of R.1004 (1) and we do not think the Rule should be interpreted that way.

Why do horses have to be there an hour before their race or earlier, if that is not "presented to race" ?
I think this is for the purposes of pre race testing IMO.

No requirement for blood to be tested under the Rules ........In the overall scheme of things maybe the Rules should be revisited.

Pre race blood testing is not carried out for all runner at a meeting.All runners in randomly selected races only are blood tested. Usually all winners and some others with indifferent performance are swabbed but many of these will not necessarily have a blood sample to go with post race urine sample.

Forget this particular case but shouldn't all trainers have available to them every means to clear their name. There must be plenty of cases where the trainers are not guilty but are not permitted under the rules to present their case.
All trainers must be on egg shells for their future.
Its a bit like saying in Rugby..." I've got the ball and will score a try because under the rules you are not allowed to tackle me"
Love to hear trainers comments on this.
This case for me is sensational only in the fact that Lance has chosen to plead innocent which of course is his choice. But what sort of defence can he put up to a charge that essentially has no defence IMO
The problem is he has not been charged with any complicity in this like administering.
that would bring a more serious charge.
What the charges are saying is the horse turned up at the start of the race with DMSO on or in it.
That shouldn't have happened and someone is responsible.
Ultimately the trainer or in his absence the person in charge is responsible for the horse and they must take the responsibility. The rule is written in such a way to say. You are the trainer you are ultimately responsible.
As in the FLY LIKE N EAGLE case If an employee broke the rule then u kick there butt later.I
Charges are laid in NZ under this rule ad nauseum and as I say it's very rare to have a not guilty plea.

Exert from panel findings..

6.1 We have two issues to determine. The first is whether the charge against Mr Justice is proved and the second related issue is whether "Smoken Up" was connected with a breach of sub-rule (1) or (2) within R.1004 (8) so as to disqualify it from the Pacing Grand Final it won and make it liable to the further period of disqualification not exceeding five years provided for in R.1004 (8). Because breach of R.1004 (2) is what Panckhurst J referred to in the McInerney case as a status offence proof of a breach of R.1004 (2) by Mr Justice will necessarily carry with it a finding that "Smoken Up" was connected with a breach of sub-rules (1) and (2) for the purpose of R.1004 (8).

6.2 Proof of the charge against Mr Justice requires proof of the following elements:
(i) that "Smoken Up" was taken to a racecourse for the purpose of engaging in a race on 8 April 2011;
(ii) that the horse was presented for a race at the racecourse that day when it was not free of the Prohibited Substance DMSO;
(iii) that Mr Justice was the trainer of the horse when it was taken to the racecourse and presented for the race.
The evidence is clear, and there is no dispute, that "Smoken Up" was taken to Alexandra Park on 8 April 2011 and there at 9:43 pm that evening ran in the Pacing Grand Final which it won. The evidence is equally clear, and again there is no dispute, that at the time of those events Mr Justice was the trainer of "Smoken Up". For the reasons outlined earlier in this Decision we are satisfied when "Smoken Up" was taken on to the track and lined up for the start of the Pacing Grand Final and began to run in the race it was presented for the race for the purposes of R.1004 (1

[p plater]

Yeah it seems the RIU have all the bases covered to stop argument from trainers. With so many individuals involved to get to swab testing, no one could have made a mistake except the trainer and even then no proof or evidence against him but bad luck he's guilty. It appears any evidence put forward by experts is simply waved off as we "don't accept" unless its a RIU expert, 2 contaminated control tests but don't worry it was a machine fault.
No wonder the industry is in the decline. Maybe the RIU should be renamed the "God Squad" trainers futures are at their pleasure.
How can you have a rule that states
"(4) A breach of these Rules under sub-rule (2) or sub-rule (3) is committed REGARDLESS of the circumstances in which the prohibited substance came to be present in or on the horse"
I guess that why trainers don't bother to fight as you say " it's very rare to have a not guilty plea" Not worth the cost

[2minuteman]

Very interesting conversation and many good comments/points made,however,why,oh why, has it taken six months to get here?
Would expect an appeal and if the time taken to get to this point was, IMO (unacceptably) so long,we will know the winner of ID13 before this is all over.

[Flashing Red]

essentially has no defence IMO

That's the thing. I disagree with any rule that is written to be almost defenceless. That is flat out not fair. And while I don't profess to be an expert by any stretch of the means in regards to the JCA/NZ Rules - no matter how I look at this - and this includes your comments - what I gather about this whole scenario is that a trainer isn't just responsible for their own actions, they are responsible for matters/people out of their own control. To me, that's not fair.

Tee Cee I have another question - I believe you told me once before that the NZ Court system doesn't normally entertain appeals from the JCA. Is this a hard and fast rule? I could have sworn that Lisa Cropp had something go through the courts a few years ago??

[p plater]

I found an interesting remark after looking at the Decision (teecee made me do it) in 4.22 in part it states
"Ms Thomas' cross examination was also directed to the failure of Mr George or Mr Carmichael to take steps to preserve the blood sample taken from "Smoken Up" at 8:48 pm on 8 April 2011 for analysis in order to measure the accuracy of the results of the urine sample taken from the horse later than evening at 10:10 pm. Mr George said that he would have expected Mr Carmichael to have been aware a blood sample had been taken from "Smoken Up" at that time but was not able to explain why Mr Carmichael did not check to see that the blood sample was available for analysis after becoming aware of the DMSO level found in the urine sample taken from "Smoken Up" following the completion of the race on 8 April 2011."

Is this guy serious, it was the Inter Final and all runners get blood taken from G1 races. Just another example of the "Fairness" under their system. Cameron George is the Boss, he should have made sure it was done. Oh that's right its the trainers fault.

[aussiebreno]

Stop trying to find excuses. It's pretty childish.

[p plater]

Aussiebreno, maybe you are mistaking my thoughts on this.
It's the way the trainers are treated under NZ rules. No matter what the trainer does it is extremely hard for him to defend himself. At every turn when an error or mistake is made it seems that the current rules leave the "Judges" no room to move. The wrong number on the swab card was dismissed as just an error.
If you were done for Drink Driving and the charge sheet had the wrong number on it, how far would your case go?
The absolute rule is totally unfair and could end up killing the industry in NZ. Surely under any Law both parties must be given a fair go to get to the truth. In this case no one (either side) can say how or when the DMSO got into the horse.The RIU doen't need to and anything the trainer puts up is dismissed.....what if there is a problem with the testing system and the pre-race blood could have helped in establishing a starting point reading. If the pre-race blood was over the limit well case over, he had it in him.
I think the industry must take a close look at the rules for everyones sake.They are stacked in the RIU's favour which can't be healthy for the industry.
Trainers know this and that's why Teecee said "it's very rare to have a not guilty plea"

[aussiebreno]

Aussiebreno, maybe you are mistaking my thoughts on this.
It's the way the trainers are treated under NZ rules. No matter what the trainer does it is extremely hard for him to defend himself. At every turn when an error or mistake is made it seems that the current rules leave the "Judges" no room to move. The wrong number on the swab card was dismissed as just an error.
If you were done for Drink Driving and the charge sheet had the wrong number on it, how far would your case go?
The absolute rule is totally unfair and could end up killing the industry in NZ. Surely under any Law both parties must be given a fair go to get to the truth. In this case no one (either side) can say how or when the DMSO got into the horse.The RIU doen't need to and anything the trainer puts up is dismissed.....what if there is a problem with the testing system and the pre-race blood could have helped in establishing a starting point reading. If the pre-race blood was over the limit well case over, he had it in him.
I think the industry must take a close look at the rules for everyones sake.They are stacked in the RIU's favour which can't be healthy for the industry.
Trainers know this and that's why Teecee said "it's very rare to have a not guilty plea"
Yeah maybe I'd try and get out of the drink driving charge, but then again maybe not. But still doesn't change that I was drink driving and I doubt I'd get a 5 page thread with people trying to defend me.

The law according to some posters in here:
Proof must be through all of the following: CCTV, eye witnesses, DNA evidence, admission of guilt etc. Also; if the policeman dares stutter or say the Miranda warning wrong then all charges should be dropped.

[p plater]

Aussiebreno, if you ever get done let us know I'll start a thread for you.
Interesting you mention CCTV. Did you know for some unexplained reason the CCTV on the stables was not turned on that night.
This is obviously an unusual case in that DMSO is so quickly absorbed into the system (minutes) and was not tested for in the heats. Heat samples test after final testing.
As part of my arguement for a change to the rules, consider this and for a moment put yourself in the trainers shoes.
This relates to the Control sample.
At 4.14 Mr Gardner who did the initial contol testing said in part "Mr Gardner also said analyses he carried out on the control sample revealed the presence of trace levels of DMSO which he said was possibly explained either by DMSO being present in the control sample itself or as a result of the testing process he carried out. He said due to the quantity being a trace level only it was not possible to quantify the amount of DMSO in the control sample."

Then his boss Dr Beresford said in part at 4.18 (1) "the control sample associated with the urine sample taken from "Smoken Up" on 8 April 2011 was not sent to the Racing Science Centre in Queensland with the reserve sample because it was not the practice to do so nor was there any requirement to do so"

How fair is that for a defence.........change the rules....for a start have 2 samples of the Control taken.

They admit a problem with contamination of the Control but no referee sample testing.

[Flashing Red]

Yeah maybe I'd try and get out of the drink driving charge, but then again maybe not. But still doesn't change that I was drink driving and I doubt I'd get a 5 page thread with people trying to defend me.

That is assuming you WERE drink driving - what if you weren't? There have been several issues raised in the Smoken Up case that cast doubt on whether the DMSO was present in the horse during the race or, even worse, contamination issues where there is an argument that the horse didn't have DMSO in his system, period. I know you say this is opinion, but if you want to say that, isn't everything opinion? Why shouldn't trainers be given the benefit of the doubt?

One of my lecturers defended a client in a speeding charge. The client was adamant that he wasn't speeding (it was something like 30km over the limit). He was caught with one of those speed camera guns. They chose to dispute the matter in court and when requesting the repairs and maintenance done on said camera, it was a lot higher than what was the average for that make and model. The client got off on those charges. Heck he could have been speeding but there was a good chance that at the time the machine was faulty. The client was given the benefit of the doubt.

In our legal system, defendants are innocent until proven guilty - and it is like that for a reason. In the racing system, participants are guilty until proven innocent - I don't know about you but that really doesn't sit well with me at all. There is also a well known legal adage "better 10 guilty men go free than one innocent man charged" - that is another principle that our legal system is based on. I can't say definitely, but I would think that the Smoken Up camp would of had to prove their case on the balance of probabilities (51% or more) - this is the case in Australia, of what I have gathered from the judgements I have read. Everything I have read, to me, suggests at least a 51% chance that either the DMSO became present in the horse AFTER the race or the DMSO was not even there AT ALL and it is a contamination issue. Basically what has to be proven is that the arguments put forward by the defence were a more likely possibility, even if just by a mere 1%, than the arguments put forward by the prosecutors.

I am not 100% sure how the standard of proof is applied/interrelated with cases in New Zealand (or indeed what the standard is, ie balance of probabilities or beyond reasonable doubt), but surely Tee Cee could enlighten us on that. :)

I would go as far to say if this case were heard in Australia that charges would have been dismissed. I would go as far to say if this case were heard in an actual NZ Court, should/if it ever get there, these charges would also have a good chance of being dismissed. I probably sound like a broken record and should give up on this cause. This outcome, it would not matter to me if this was a maiden or Interdom final, principles are still the same. You probably remember that song and dance I threw about that NZ trainer loosing a race due to that ranitidine (and if I remember correctly, being personally fined due to something completely out of his control).

...ok.... said my piece, really should take a step back now!! :)

[gutwagon]

One thing is for sure, this saga is going to drag on for a very long time with lots of legal action ! It's a disgrace that the decision has taken so long and we are still waiting for the penalty's to be decided on. Its dragging our sport through the mud. Lets hope it leads to tighter and better procedures. The only winners here will be lawyers !

[Flashing Red]

Another possible standard has been brought to my attention that could have possibly been used due to the magnitude of this case.... great reading (first section of article) at http://www.austlii.edu.au/au/journals/MULR/2003/13.html... :)

[aussiebreno]

That is assuming you WERE drink driving - what if you weren't? There have been several issues raised in the Smoken Up case that cast doubt on whether the DMSO was present in the horse during the race or, even worse, contamination issues where there is an argument that the horse didn't have DMSO in his system, period. I know you say this is opinion, but if you want to say that, isn't everything opinion? Why shouldn't trainers be given the benefit of the doubt?

One of my lecturers defended a client in a speeding charge. The client was adamant that he wasn't speeding (it was something like 30km over the limit). He was caught with one of those speed camera guns. They chose to dispute the matter in court and when requesting the repairs and maintenance done on said camera, it was a lot higher than what was the average for that make and model. The client got off on those charges. Heck he could have been speeding but there was a good chance that at the time the machine was faulty. The client was given the benefit of the doubt.

In our legal system, defendants are innocent until proven guilty - and it is like that for a reason. In the racing system, participants are guilty until proven innocent - I don't know about you but that really doesn't sit well with me at all. There is also a well known legal adage "better 10 guilty men go free than one innocent man charged" - that is another principle that our legal system is based on. I can't say definitely, but I would think that the Smoken Up camp would of had to prove their case on the balance of probabilities (51% or more) - this is the case in Australia, of what I have gathered from the judgements I have read. Everything I have read, to me, suggests at least a 51% chance that either the DMSO became present in the horse AFTER the race or the DMSO was not even there AT ALL and it is a contamination issue. Basically what has to be proven is that the arguments put forward by the defence were a more likely possibility, even if just by a mere 1%, than the arguments put forward by the prosecutors.

I am not 100% sure how the standard of proof is applied/interrelated with cases in New Zealand (or indeed what the standard is, ie balance of probabilities or beyond reasonable doubt), but surely Tee Cee could enlighten us on that. :)

I would go as far to say if this case were heard in Australia that charges would have been dismissed. I would go as far to say if this case were heard in an actual NZ Court, should/if it ever get there, these charges would also have a good chance of being dismissed. I probably sound like a broken record and should give up on this cause. This outcome, it would not matter to me if this was a maiden or Interdom final, principles are still the same. You probably remember that song and dance I threw about that NZ trainer loosing a race due to that ranitidine (and if I remember correctly, being personally fined due to something completely out of his control).

...ok.... said my piece, really should take a step back now!! :)

From what P Plater said I took it to say I was guilty however the number on the charge sheet was wrong. If we start arguing fake cases I think we are in trouble lol!

Maybe what you are saying Flashing would be better said in the context of "Hey; this system isn't right and it should be changed so this doesn't happen in the future." rather than "This system isn't right; Smoken Up (or any horse) shouldn't have got the race taken off him." Because that's definetely right. It's plain to see it isn't perfect.

On your legal saying... I understand it may be a popular saying and many abide by it. But I don't particularly agree with it. Under that saying 10 victims miss out on a sense of justice. So 10 people/set of people suffer wrongly. Under the alternative (which is get 11 crims in jail at the risk of 1 being innocent) there is only 1 victim. Thats 10 victims under the popular saying but only 1 victim under the alternative. In a shitty country eg Iraq under Hussein you might get thousands and thousands of innocent people go to jail but in a country as good as Australia that won't happen. And if it does there are probably many other issues to be worried about.

[Flashing Red]

"Hey; this system isn't right and it should be changed so this doesn't happen in the future."

Yes. :)

Also in regards to that old legal adage... I had to watch an older video on America about the death penalty and the numerous cases (especially pre-DNA era) of completely innocent people being executed (and subsequently exonerated for the crime after their death). The looks of some of their families interviewed in the video STILL haunt me. A bit of a moot point really for Australia, but even large fines or gaol time... could not think of anything worse than being punished for something that I didn't do. :-/

[aussiebreno]

Yes. :)

Also in regards to that old legal adage... I had to watch an older video on America about the death penalty and the numerous cases (especially pre-DNA era) of completely innocent people being executed (and subsequently exonerated for the crime after their death). The looks of some of their families interviewed in the video STILL haunt me. A bit of a moot point really for Australia, but even large fines or gaol time... could not think of anything worse than being punished for something that I didn't do. :-/

Yeah I know what you mean. This feels bad http://en.wikipedia.org/wiki/Ron_Williamson

But a few weeks ago I read a book called called Rats: Crooks Who Got Away With It by John Silvester and Andrew Rule and thats just as devestating.

Edit: Speaking of 1 in 10 it's nice to see you're in the 1 in 10 (unofficial) who can correctly spell moot!

[teecee]

I actually rechecked the rules last night and I have to apologise for what I told you previously.
Appeals against raceday decisions regarding horses i.e. relegation, disqualification etc are not permitted.
Appeals against horses for no raceday decisions like drug hearings etc are permitted to the Racing Appeals Tribunal which is part of JCA. They look after all these things.
Appeals by hosemen for raceday and non raceday decisions can be appealed to the RAT.

However that is as far as it goes.
Racing Act 2003 forbids appeals against decisions of the Racing Appeals Tribunal.
Means you get one shot at it and you can't go to the Courst.
Exert Racing Act 2003
21 Appeals against placings and stakes

(1) No person is entitled to appeal to any appeals tribunal against

any decision made by a judicial committee on the day of a race

in respect of placings in that race or stakes payable for those

placings.

(2) Nothing in subclause (1) prevents a judicial committee, at any

time after the day of any race, from disqualifying a horse for a

race, and making any order the committee considers appropriate

as to the alteration of the placings in the race and the stakes

payable for those placings,—

(a) on a ground relating to a drug, stimulant, or depressant

having been administered to the horse; or

(b) on the ground that the horse was ineligible to start in the

race; or

(c) on any other ground on which, under the relevant racing

rules, a horse may be disqualified for a race after it has

started in the race.

(3) If a judicial committee decides, after the day of a race, that

a horse should be disqualified for the race on any ground referred

to in subclause (2), the owner of the horse may appeal

against the decision to an appeals tribunal.

The decision of the Appeals Tribunal shall be final, shall bind all bodies and persons and

shall not be subject to any appeal under these Rules.




That's the thing. I disagree with any rule that is written to be almost defenceless. That is flat out not fair. And while I don't profess to be an expert by any stretch of the means in regards to the JCA/NZ Rules - no matter how I look at this - and this includes your comments - what I gather about this whole scenario is that a trainer isn't just responsible for their own actions, they are responsible for matters/people out of their own control. To me, that's not fair.

Tee Cee I have another question - I believe you told me once before that the NZ Court system doesn't normally entertain appeals from the JCA. Is this a hard and fast rule? I could have sworn that Lisa Cropp had something go through the courts a few years ago??

[teecee]

Yes u are right and that was probably the last straw the L Cropp thing


That's the thing. I disagree with any rule that is written to be almost defenceless. That is flat out not fair. And while I don't profess to be an expert by any stretch of the means in regards to the JCA/NZ Rules - no matter how I look at this - and this includes your comments - what I gather about this whole scenario is that a trainer isn't just responsible for their own actions, they are responsible for matters/people out of their own control. To me, that's not fair.

Tee Cee I have another question - I believe you told me once before that the NZ Court system doesn't normally entertain appeals from the JCA. Is this a hard and fast rule? I could have sworn that Lisa Cropp had something go through the courts a few years ago??

[teecee]

I guess and only IMO all parties can take some responsibility.
There appears to be a massive amount of research done on both sides.
Panel have been dealing with other cases
Defence counsel is a daytime Crown prosecutor in this region and she has had numerous trial cases in this period of time going through the courts.
I believe there were numerous conferences held prior to the hearing getting off the ground.

Very interesting conversation and many good comments/points made,however,why,oh why, has it taken six months to get here?
Would expect an appeal and if the time taken to get to this point was, IMO (unacceptably) so long,we will know the winner of ID13 before this is all over.

[Flashing Red]

Thanks for your replies Tee Cee, they are always appreciated :)

[teecee]

I am not 100% sure how the standard of proof is applied/interrelated with cases in New Zealand (or indeed what the standard is, ie balance of probabilities or beyond reasonable doubt), but surely Tee Cee could enlighten us on that. :
Racing cases are on the balance of probabilities..)

I would go as far to say if this case were heard in Australia that charges would have been dismissed. I would go as far to say if this case were heard in an actual NZ Court, should/if it ever get there, these charges would also have a good chance of being dismissed.
Just take one more step. the section in the findings is a bit long to reproduce here but if you read clause 3.12 to 3.23 you will see that the High Court and later our Court of Appeals (Our 2 highest courts at the time) did rule on the Absolute Liability Rules and could find NO Fault with them when asked to rule on them. Lance's lawyer is an exceedingly good lawyer who as you can see from the hearings has tried everything on IM a hiding to nothing case. IMO 50/50 to appeal

[teecee]

I dont want to completely rubbish our legal system to u ozzies but have you heard of
Arthur alan Thomas convicted twice of double murder spent 10+ years locked up. Pardoned and paid $1mill.
David Bain convicted of 5x murders of his family 14yrs locked up. After numerous appeals Cleared at retrial awaiting compensation claim.
David dougherty convicted of rape xx years locked up Cleared at Retrial by DNAThank G.D for no capital punishment..


Yes. :)

Also in regards to that old legal adage... I had to watch an older video on America about the death penalty and the numerous cases (especially pre-DNA era) of completely innocent people being executed (and subsequently exonerated for the crime after their death). The looks of some of their families interviewed in the video STILL haunt me. A bit of a moot point really for Australia, but even large fines or gaol time... could not think of anything worse than being punished for something that I didn't do. :-/

[Flashing Red]

I have heard of the Arthur Alan Thomas case... if not that one, one in NZ with similar fact scenario, it rung a bell...