Smoken up

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.

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

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"

Quote:

Originally Posted by 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"

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.

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.

Quote:

Originally Posted by aussiebreno

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!! :)

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 !

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... :)

Quote:

Originally Posted by Flashing Red

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.

Quote:

Originally Posted by aussiebreno

"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. :-/

Quote:

Originally Posted by Flashing Red

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!

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.

Quote:

Originally Posted by Flashing Red

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??

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

Quote:

Originally Posted by Flashing Red

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??

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.

Quote:

Originally Posted by 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.

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

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

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..

Quote:

Originally Posted by Flashing Red

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. :-/

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