Harness racing trainer disqualified for one year and seven months

REASONS FOR DECISION OF ADJUDICATIVE COMMITTEE

1.  At the conclusion of the hearing of submissions from Counsel for both parties, as well as considering their written submissions, factual statements, and oral evidence of Mr A Grierson, Mr L Molloy and Ms Wigg, the Adjudicative Committee after deliberating, delivered its decision as follows:

(a)  Ms Wigg was disqualified for a period of one year and seven months to commence 17 February 2022 and to end on 17 September 2023, on each Information, but to be served concurrently.

(b)  Although not then delivered, Ms Wigg is ordered to pay costs in:

• the sum of $6,000 to the RIB as a contribution towards costs incurred by the Informant
• the sum of $4,000 to the RIB Adjudicative Committee as a contribution towards its cost.

2.  The Adjudicative Committee advised that full written reasons were to follow.  These are now set out.

3.  Ms Wigg admitted three charges of administering a substance (a mixture) to each of three harness racing horses on an afternoon of raceday in which they were to race.  The essence of the charges were that between 3.40pm and 4.45pm on 16 July 2021 she committed three separate breaches of NZ Harness Racing Rule 1004(1)(b).  Originally the RIB had laid alternative charges of breaches of Rule 1004C(3) of (essentially) providing to the three horses that had alkalising agents to it.  As she admitted the three lead charges of administering a substance by way of oral syringe on raceday, the Informant did not need to proceed with the alternatives.

4.  The three admitted charges were:

(a)  Charge A15915:  She administered to the harness horse “GETN WIGGY WITHIT” which was entered in Race 4 at the Auckland Trotting Club Meeting at Alexandra Park that evening [16 July 2021] a substance by way of oral syringe.

(b)  Charge A15916:  She administered to the harness horse “SAINT MICHEL” which was entered in Race 6 at the Auckland Trotting Club Meeting at Alexandra Park that evening [16 July 2021] a substance by way of oral syringe.

(c)  Charge A15917:  She administered to the harness horse “HAPPY PLACE” which was entered in Race 7 at the Auckland Trotting Club Meeting at Alexandra Park that evening [16 July 2021] a substance by way of oral syringe.

5.  Each of those actions was a breach of Rule 1004(c)(1)(b) which provides:

“No person shall administer to a horse entered in a race in the period one day before racing (except under direction or supervision of the Club Veterinarian, Racing Investigator, or Stipendiary Steward, any substance by:

(a) ……

(b)  Injection, hypodermic needle, or oral syringe

(c) ……

(d) ……

6.  The penalty provisions for breach of the Rule are contained in Rule 1004D which provides that a person who breaches Rule 1004C 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 a period not exceeding 5 years.

7.  At the outset the Adjudicative Committee emphasises that the Rule makes no reference to a substance being, or having to be, “performance enhancing” (or a “prohibited substance”) and any opinions of witnesses as to that feature are misplaced.  But as Mr Dale QC contends, the honest belief or intention of Ms Wigg as to why she administered the substance, may if accepted as credible, be considered in fixing any penalty.

8.  The Adjudicative Committee received:

• written and oral submissions from both Counsel
• written statements of evidence from Mr A Grierson (Veterinary Surgeon), Ms S L Wigg and Mr L J Molloy
• oral examination by Counsel and questions by the Adjudicative Committee of those witnesses also occurred.

9.  Ms Wigg was a Licensed Trainer of harness racing horses, having held the licence to train from April 2021, three months before these offences.  She is also a Licensed Trials and Amateur Driver.

10.  At about 3.40pm on Friday 16 July 2021 she was at her training premises in Kumeu.  She retrieved the three horses from their paddocks in preparation for them to race later that evening at the Auckland Trotting Club Meeting at Alexandra Park.

11.  The three horses were ‘GETN WIGGY WITHIT’ which was entered in Race 4, the McMillan Equine Feeds Mobile Pace Non-Winners 2yo+ 2200m due to start at 6:55pm; ‘SAINT MICHEL’ which was entered in Race 6, the Creatine Standing At Nevele R Handicap Trot R55-R81 DiscrHcp 2200m due to start at 7:51pm; and ‘HAPPY PLACE’ which was entered in Race 7, the Lazarus @ Alabar Mobile Pace 3yo+ R53-R55 2200m due to start at 8:21pm.  Having collected the three horses from their paddocks, Ms Wigg tethered them in front of boxes in the stable block of the property. She then prepared in a jug or jugs a brown/orange paste mixture, which she drew up into several previously used oral syringes.

12.  Around 4:45pm, RIB Investigators observed her to administer the paste to ‘GETN WIGGY WITHIT’ which repeatedly resisted by pulling its head away making it difficult for Ms Wigg to administer. Some of the paste that she was administering ended up on the ground.

13.  Upon observing Ms Wigg administer the paste to ‘GETN WIGGY WITHIT’, RIB Investigators entered the property and spoke with her. She was spoken to on three separate occasions as other information was obtained.  Ms Wigg was initially co-operative and stated that she had administered only a B Boost to ‘GETN WIGGY WITHIT’.  She said it was because he “gets a bit worked up before a race” and that she thought it would “help him get through the race and to recover”.  She stated “I was really pushing for that $30,000.00  [later] race for the maiden and “he didn’t quite eat up last night and this morning so I thought it might just give him a bit of a, you know. That’s the only reason.”

14.  However, this was not correct and she later admitted it was not a B Boost that she had administered.  Rather it was a paste made up, she said, of turmeric (2 tablespoons), Glucose (2 tablespoons) and approximately 100 mls of water.  When asked what was the purpose of giving turmeric, because it must have some benefit, Ms Wigg replied, “I can’t remember”.

15.  Investigators observed a significant amount of brown/orange paste on the ground around “GETN WIGGY WITHIT”.  Similar brown/orange paste was detected on the ground under where “SAINT MICHEL” and “HAPPY PLACE” were tethered.  All three horses also had the same brown/orange staining around their mouths.

16.  On being further questioned and asked whether she had orally administered the same paste to “SAINT MICHEL’ and ‘HAPPY PLACE’, Ms Wigg stated that she had only administered the paste to the “one” horse.  That was not true.  She then made a phone call and walked out of the interview. Investigators endeavoured to continue the interview but Ms Wigg did not assist.  That phone call was to her former partner and part-owner of the horses.  She was heard to say to the person on the phone “How far are you away?” and “Don’t f….n yell at me”. After the call finished, the interview continued whilst Ms Wigg was putting covers on the horses.  She said that the traces of paste around the mouths of “SAINT MICHEL”’ and “HAPPY PLACE” were the result of her adding the paste to a bucket containing molasses, from which both horses had drunk.  That was also incorrect.

17.  When advised that if this was the case then it still amounted to a race day administration Ms Wigg replied “As far as I knew, you’re allowed to give them a drink of molasses or f…..n glucose. It’s only glucose; it’s not a substance as you’re saying it.”  A short time after the interview ended, Ms Wigg’s former partner arrived at the property. He was the holder of an HRNZ Stable-Hand Licence detailed as being employed by Ms Wigg. He said that he owns the property.  He was abusive and aggressive  towards the RIB Investigators.

18.  The three horses were scratched from their races by the RIB that night, as no horse may be administered a substance within one day of a race.

19.  Several exhibits were removed from the property including multiple recycled oral syringes.  At least one of which had been used to administer to “GETN WIGGY WITHIT”, along with other syringes which had been recycled and contained the brown/orange paste. The contents were analysed by the New Zealand Racing Laboratory to determine what were the elements of the paste.

20.  A report from The Official Racing Analyst, stated that the paste contained a mixture of “curcumin”, which is present in turmeric, and “piperine”, an alkaloid found in black pepper. Piperine has a strong pungent taste and causes a burning sensation to mucous membranes so is unpalatable to horses. It is absorbed through the gastrointestinal tract and enhances the absorption of curcumin. Curcumin has been reported, although not verified by peer-reviewed science, to have anti-inflammatory properties.

21.  The paste had a high pH level. pH levels range between 1-14 with 1-6 being acidic, 8-14 alkaline and neutral is 7.0. Two recycled syringes that contained some of the paste had pH levels of 10.9 and 10.6, so as to be an alkalising agent.  Mr Grierson said the Alkaline level could not be explained by the turmeric but could not say what else had been instrumental in the increase.  Ms Wigg offered to the Adjudicative Committee an explanation that it may have been from the bore water used at the property.

22.  Each of the three horses were later swabbed by an RIB Swabbing Official and the swab samples were analysed for the presence of prohibited substances. None were detected.  The swab samples were not analysed for pH levels because by the time Investigators became aware of the elevated pH levels in the exhibits, the swab samples were unable to be tested.

23.  Ms Wigg has been involved in the Harness Industry for a number of years. She does not have any previous breaches of the administration or the “one clear day” Rules.

Written Evidential Statements

24.  Ms Wigg Written Statement (in summary)

(a)  She said she administered the mixture of turmeric and black pepper to each of the three horses only because she believed it was for their necessary health benefits.  She said she did not believe it was “performance enhancing” and that was not her intention.  She said she was in a state of panic and frightened upon seeing the Investigators arrive which led to her initial denials, and false answers as to administration by oral syringes.  She said she had previously been in a relationship with a man who owned the three horses.  She said she had received from this person shares in horses she trained and she received no income from her work.  She said that it was he that she telephoned (and that is clear from his arrival at the property).  Antagonistic, aggressive behaviour by him towards the Investigators followed.  She said she held a 50% share in the training property with her partner, but that relationship had since ended.

(b)  She stated that she fed the horses the mixture solution on other occasions orally, through a bucket and did not regard her administration that afternoon as “a big deal as they would normally ingest the solution anyway”.

(c)  She said she has health issues, limited income and if not able to continue to train horses, or live on the property (in which she has a 50% share) she would suffer serious financial consequences.  She said she had been invited to represent New Zealand at the World Amateur Drivers’ competition in September 2022.

25.  She presented herself for questioning by Mr Symon and the Adjudicative Committee.  As Mr Dale QC properly said, her intentions were relevant to penalty and the credibility of her present claims and beliefs was to be assessed.  The intention of a person can only be ascertained by what they say it was, or if it can be drawn by reasonable inference from established facts.

26.  In answers to questions from Mr Symon and the Adjudicative Committee, Ms Wigg said:

• She knew of the “one clear day” Rule and that she should not have administered the mixture to the three horses.
• She said she did it for animal health reasons and thought it was only a feed supplement.
• She lied on the day to the Investigators because she was in a state of panic when they arrived.
• She had made up the mixture, and knew what it was from “Googling” it, and knew other Trainers used it.
• Another person told her to on this afternoon as she said she had forgotten to provide it in the feed of the horses earlier.  She named that person but it is not necessary for us to record that in these reasons.
• She did not then think her actions were especially serious.
• She had not taken advice from her Vet.

27.  Mr Grierson’s evidence was that the mixture administered to the three horses contained Black Pepper (Pepperine), Turmeric (Curcumin) and something else not discernible on testing, which must have led to an increase in the Alkaline level of the mixture – though it was not Bicarbonate of Soda and no “prohibited substance” was detected (as existing as a prohibited level) within the Rules of Harness Racing.  He said that it is well known that Turmeric is a spice with health benefits and it has some potentially anti-inflammatory properties, although this has not been the subject to scientific peer review.  Black Pepper is added to the mixture to aid absorption.  He agreed with Counsel that Black Pepper was not “performance enhancing”.

28.  Although Mr Molloy appeared to challenge the opinions and evidence of Mr Grierson – indeed he said that he “was worried” by the expert’s evidence – in reality there was little if any disagreement between his and Mr Grierson’s evidence or views on the relevant matters.  Mr Molloy said that he is a Registered Veterinarian (though not, it seems in current active practice) and has held a Trainer’s Licence in the past.  He gave his opinion relating to a mixture of Turmeric and Black Pepper.  He said that Turmeric was a natural spice which can provide health benefits to humans from absorption in the intestinal tract.  He said it may help to repair tissue that is damaged by hard physical exercise, but it is not “performance enhancing”.  He said that when mixed with black pepper, that substance increases “the bio-availability” of turmeric – that is, to increase the proportion of turmeric absorbed into the body rather than passing unabsorbed though the intestinal tract.  He said the mixture was for “gut health and for whole of body health for repair of tissue after there has been anaerobic respiration” from hard physical exercise.  He said his opinion was that the mixture was not, nor could be said to be, “performance enhancing.  (As mentioned that is a “strawman” argument (a logical fallacy) as it is not a requirement of proof under this Rule (or in the “prohibited substances” definition) – and a belief of the Trainer is not a defence (although might be argued as mitigating)).  He said the mixture was commonly used as a health supplement by Trainers – and humans – and presented to the Adjudicative Committee a magazine article to support that view.  That article recommends the way in which a horse owner or Trainer should feed turmeric if it was decided to do so, and although there had not been “definitive trials to support turmeric’s medicinal impact or establish an effective dose for horses” it was a “powerful anti-inflammatory and anti-oxident” used by humans.

29.  In his oral answers Mr Molly said there was “nothing in the evidence or at Ms Wigg’s stable” to explain the Alkaline level.  A mixture such as this was commonly used solely for gut health and animal welfare purposes.  He said he had never used the mixture when a Trainer, and accepted that administration through a plunger on race day was a breach of the Rule.  He agreed with Mr Grierson that the mixture can have anti-inflammatory qualities.

Conclusions as to Ms Wigg’s Evidence Concerning her Intentions and Beliefs

30.  The Adjudicative Committee does not accept as credible her assertion that she only lied to the Investigators because she panicked.  No doubt she was alarmed to have been caught red handed, but her lies (as to the substance being a ” B booster” and not having given it to all three horses) can only be explained because she knew of the Rule prohibiting this type of Race Day administration, and was endeavouring to deceive the Investigators and deflect their enquiry.  The Adjudicative Committee does not consider her lies can be now explained away simply by pointing to “panic”.

31.  She told the Adjudicative Committee that she knew she was breaching the Rule, which is well known to all Harness Racing Trainers.  She said she had not done it previously.  She told us that another person had told her to administer the mixture by oral plungers.  We did not hear any statement or evidence from that person.

32.  It may well be the case that Ms Wigg did not believe the mixture was “performance enhancing” (but that was to focus on the wrong test).  It clearly was her intention to provide some benefit to the three horses for “animal health”.  Yet administration to three horses by plungers involved a deliberate breach of the Rule known to her. And there had to accompany this with an intention to provide some benefit for the animals.  Although she says the only benefit aimed at was “gut” health.  In answer to the Adjudicative Committee’s questions she said she had looked up “Google” to find out about the Tumeric/Black Pepper mixture.  She said she did not learn from that inquiry that the mixture was known to have anti-inflammatory properties (which can impact on joint inflammation), but the Adjudicative Committee does not accept that denial.  Whilst the mixture can aid “gut health” but, as Mr Grierson and Mr Molloy agreed, that it also has anti-inflammatories properties.  Of course, it is not a prohibited substance under the Rules.  But her claimed ignorance as to it having properties of possible anti-inflammatory affect is not credible.

33.  She may have had a belief as to “not being performance enhancing”, as was her belief that the mixture was only intended to be used for “animal health” benefits, but her clear intent was:

(a)  to breach the “one day” Rule

(b)  so as to provide some health benefits to three horses.

The crucial issue is to intend to deliberately breach the Rule, of which she was aware.

34.  The Adjudicative Committee does not accept as credible her claim that she thought that what she did was “not a big deal”.  Her actions and behaviour when confronted by the Investigators were not consistent with her having such a belief.  How she reacted by attempting to divert the Investigators, her telephoning her former partner, when she knew she had been exposed as deliberately flouting the Rule of which she was well aware, do not square with “not a big deal” belief.  Her intention was to knowingly flout the Rule.  Even if she had been prompted by another person, as she told the Adjudicative Committee, as a Licensed Trainer the responsibility fell upon her and her action’s fell woefully short of the behaviour required of a Licensed Trainer.

Informant’s Submissions as to Penalty

35.  Counsel referred to the well known remarks of an Appeal Tribunal in RIU v Lawson 13 May 2019, which are summarised as:

“not simply to punish … but crucially are to protect the profession/public/industry and those who are to deal with the profession …

….. focus on the interests and reputation of the profession as being more important than the individual offending member.  The Tribunal must endeavour to reach a proportionate balance between:

• the public interest
• the interests of the offending
• the interests of the professional body as a whole
• the seriousness of the offending
• any aggravating and mitigating factors”

Counsel emphasised the importance of there being a general deterrence so as to prevent similar offending by other Trainers.  The “same day” Rule is well understood by all Harness Trainers as it was by Ms Wigg.

36.  The Adjudicative Committee was referred to cases which were said to be “comparable” of RIU v McGrath (8 years disqualification) and RIU v Alford (7 years disqualification), and also RIU v Luxton (20.1.20) – $1,000 fine and submitted that Ms Wigg’s case whilst not in the category of McGrath and Alford, was far more serious than Luxton and required, at least, a period of disqualification for no less than 2 years given there were three serious administration breaches – albeit in concurrent actions.  He contended that:

The  Penalty Guide suggests a starting point of 18 months’ disqualification for a first administration offence, then three years and five years’ disqualification for second and third offences respectively.  This is however a guide only, and more recent decisions of the Tribunal have indicated that in particular serious cases, significantly higher penalties might be adopted.

37.  Counsel contended that the RIB sought an order for costs as very considerable expense was incurred (for legal fees above up to and before the hearing of $10,000).  These were largely incurred from her not guilty pleas from mid August when she was charged until 4th November 2021 when her then representative said that she would admit one lead charge but still defend the others relating to the other two horses.  When Senior Counsel was retained in December 2021 the final admissions were forthcoming.  The Adjudicative Committee notes that Ms Wigg in her written statement of 11 February 2022 says that she “had been willing to admit using a syringe/plunger in respect of all three horses” but says that she did not do this as when she initially consulted Mr Molloy he agreed the mixture “was not performance enhancing and so I should not admit the charges”.

Penalty Submissions on Behalf of Ms Wigg

38.  Mr Dale QC submitted a Character Reference from Mr Blair Willmott attesting to Ms Wigg’s character and contributions to racing over a long period, and a medical certificate relating to her health.

39.  He emphasised the HRNZ Penalty Guidelines are not to be applied in a mechanistic way – and we agree with that.  They may be used sometimes as a guide but every individual case will depend on a myriad of circumstances.  He argued that a fine only was appropriate as Ms Wigg’s conduct fell closer to the Luxton type of offending rather than the egregious behaviour of Messrs McGrath and Alford.

40.  He submitted that Ms Wigg held a genuine belief that the mixture she made up was not “performance enhancing”, nor administered for that purpose, and said it was a significant mitigating factor.

41.  He contended that only a fine was justified and any disqualification of two years as sought by the RIB would impose seriously disproportionate consequences and impact on her.  He said that there were health issues affecting her.  She was in a parlous financial position; would lose income from not being able to train and she would have to dispose of her horses (of little value) and have to sell or vacate her property; and she would lose the opportunity to drive in the World Amateur Drivers’ Championship.

Outcome

42.  It is not necessary to repeat all that was said by the Appeal Committee RIU v Lawson and elsewhere, other than to emphasise that the privilege of having a Licence to work as a professional in any profession carries with it the duty to abide by the Rules, and ethics of it.  If the interests of the profession, its other members, and the wider public require a Licensed professional to forfeit that privilege, then wider interests, and crucial need to deter others who might be tempted to behave in similar ways, may have to prevail.  Of course, the loss of opportunity to benefit financially and in other ways is a punitive consequence which punishes the offender.  The Adjudicative has endeavoured to achieve a proportionate balance between such as the interests of the Harness Racing Profession, the public interest, the interests of Miss Wigg, the seriousness of the breaches, and the need to deter other Licence Holders.

43.  The Adjudicative Committee is cognisant of Ms Wigg’s financial, personal and health issues and feel sympathy for her plight. But in fixing sanctions the Adjudicative Committee was required to apply a balanced dispassionate judgment, and are required by the 5th Schedule of the Rules of Harness Racing (referred to in Lawson para [32]) to uphold and maintain the high standards expected of Trainers, to maintain the integrity of the sport of Racing and its Industry and to protect participants in the sport, Industry and the public.  Also the deterrence of others is crucial.

44.  Anything less than a period of disqualification for these three offences would be manifestly and inadequate.  The Adjudicative Committee accepts a starting point (in the Guide) of 18 months disqualification.  The fact that there were two other offences at the same time, requires concurrent rather than cumulative penalties.  They were not consecutive, or on separate occasions but arose out of the one series of events on that afternoon.  So only “concurrent sentences” are required.  Nevertheless, the fact that three horses who were to race, were administered the mixture in breach of the Rule is an aggravating feature which is best reflected in an uplift of five months to a disqualification term of 23 months.

45.  There are several mitigating factors to which the Adjudicative Committee has to take into account and for which credit is given.  The Adjudicative Committee takes into account her unblemished history; her good reputation and character; her personal, financial, and health issues.  The Adjudicative Committee takes into account her eventual admission of the three lead offences which, although not at an early opportunity, any delay in the matter getting to a hearing in February 2022 was only because Counsel was not engaged until mid December 2021, and his busy schedule had to be met.  Any delay in having the matter heard was not Ms Wigg’s responsibility.  For all these mitigating factors the Adjudicative Committee allows a discount of four months (almost 20%).  Accordingly Ms Wigg is disqualified for a period of 19 months (one year and seven months) to commence 17 February 2022 and to conclude at 5pm on 17 September 2023, on each Information but to be concurrent so there is only one penalty.

46.  The Adjudicative Committee is sympathetic to the effect this sanction will have upon Ms Wigg and to her plight, but when all the factors referred to are applied in the balancing exercise, no lesser penalty than disqualification for that period would have been appropriate.

47.  As the Adjudicative Committee said to her, the Rules provide that the general penalties relating to disqualification may in some situations be ameliorated if an offender is able to obtain the HRNZ consent to certain activities.

Costs

48.  Mr Dale QC did not seek to make further later submissions on the issue of costs, as he had already provided comprehensive submissions as to Ms Wigg’s position.

49.  Very significant costs and expenses have had to be incurred by the RIB Informant and the RIB Adjudication process over a period since July 2021.  The Adjudicative Committee does not impose a fine as a further penalty .  It is proper that Ms Wigg be ordered to pay a contribution (no more than 60%) to those expenses.  Accordingly Miss Wigg is ordered:

(a)  To pay $6,000 to the RIB (Informant) as a costs contribution.

(b)  To pay $4,000 to the RIB (Adjudicative Committee) as a costs contribution.

Hon J W Gendall QC (Chair)

Mr G Jones (Member)