Non Raceday Inquiry - RIU v LJ Justice - August 2011 - Decision of Judicial Committee 31 October 2011

HRNZ v L J JUSTICE
Hearing before Non Raceday Judicial Committee

Judicial Committee: Mr Bruce Squire QC (Chairman) - Professor Geoffrey Hall

Counsel: Mr C J Lange – Counsel for HRNZ, Ms M J Thomas and Mr R Donnelly – Counsel for Mr Justice

DECISION OF JUDICIAL COMMITTEE

1. Introduction: Outline of Case:

1.1 On Friday 8 April 2011 the Inter Dominion Pacing Grand Final was run at Alexandra Park in Auckland as part of the Inter Dominion Championships conducted by the New Zealand Metropolitan Trotting Club. The Pacing Grand Final which was Race Eight on the card was won by a horse named "Smoken Up" which was trained and driven by Mr Lance Justice of Victoria Australia.

1.2 Following the race urine samples were taken from the first five placed horses. On subsequent analysis at the New Zealand Racing Laboratory Services Laboratory in Auckland the urine sample taken from "Smoken Up" showed the presence of dimethyl sulphoxide ("DMSO") at a level of 25.8 mg/L. Under the New Zealand Rules of Harness Racing ("The Rules") DMSO at a concentration in excess of 15 mg/L of urine is a Prohibited Substance by reason of its inclusion in the Prohibited Substance Regulations.

1.3 As a result Mr Justice, as the trainer of "Smoken Up", was charged with a breach of Rules 1004 (1) and (2) of the Rules. The charge was served on him on 14 June 2011 and a fixture made for its hearing to commence on 23 August 2011.

1.4 Mr Justice denied the charge. Over three days on 23, 24 and 30 August 2011 the Committee heard and received evidence from eleven witnesses for the Informant and eight witnesses for Mr Justice, including Mr Justice himself. At the conclusion of evidence on 30 August 2011 a timetable was put in place for Counsel to provide written submissions to the Committee on a range of issues relating to the charge and its proof. Counsel have provided the Committee with their submissions as required and we are now in a position to deliver our Decision.

1.5 The evidence of the witnesses who gave viva voce evidence at the hearing either in person or by way of audio or video facilities was recorded by an audio recording device for later transcription. In some instances the evidence in chief of the witnesses was taken as read and only the cross examination recorded on the audio recording device; in other cases the whole of the evidence of the witness was recorded on the device. Unfortunately it has transpired the device used has been less than satisfactory with parts of the evidence of some witnesses not being able to be transcribed at all and in relation to other witnesses there have been difficulties in picking up clearly what the witness has said and providing a transcript of guaranteed accuracy. In those cases where such difficulties have arisen, and where it has been possible, the members of the Committee have referred to their own notes taken at the time the witness gave evidence in order to clarify aspects of the transcript which do not appear to accurately record what the witness said or where what has been transcribed is confused or does not make sense.

2. The Alleged Breach of the Rules:

2.1 Mr Justice is charged with a breach of Rules 1004 (1) and (2). Those Rules provide:

"1004 (1) A horse shall be presented for a race free of prohibited substances.

(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules."

2.2 The penalties provided in sub-rule (7) for a breach of sub-rule (2) are:

(a) a fine not exceeding $10,000; and/or

(b) disqualification or suspension from holding or obtaining a licence for any specific period not exceeding five years.

In addition sub-rule (8) provides:

"(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years".

For reasons which follow later in this Decision it is necessary to refer also to sub-rule (4) which provides:

"(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".

2.3 The charge brought against Mr Justice as formulated in the Information laid is that:

"On the 8th day of April 2011 Lance James Justice being the trainer and/or the person for the time being in charge of the horse "Smoken Up" which was presented to race in the Sky City Inter Dominion Pacing Championship Grand Final(Race Eight), at a race meeting conducted by the New Zealand Metropolitan Trotting Club Incorporated at Alexandra Park when not free of a prohibited substance namely Dimethyl Sulphoxide at a mass concentration above 15 milligrams per litre in urine; being a breach of Rules 1004 (1) and 1004 (2); and that Lance James Justice is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 1004 (7) and that the horse "Smoken Up" is liable to the penalty that may be imposed pursuant to R. 1004 (8)".

3. Preliminary Matters:

3.1 Counsel for the Informant and Mr Justice have made submissions on a number of legal issues which we consider can conveniently be dealt with as preliminary issues.

(a) The evidence of Mark William Jarrett:

3.2 At the commencement of the hearing Ms Thomas indicated she wished to challenge the admissibility of the evidence of Mr Jarrett. Mr Jarrett is an Analyst with the Racing Science Centre in Queensland (hereafter "The QRSC") who carried out an analysis of the reserve sample of urine taken from "Smoken Up" on 8 April 2011. The analysis was carried out at the request of Mr Justice and the Informant proposed to lead evidence of the result of the analysis of the reserve sample as part of its case against him. For the reasons set out in the Ruling which is delivered contemporaneously with this Decision, we have ruled the evidence of Mr Jarrett admissible.

(b) The refusal of the QRSC to make disclosure:

3.3 This issue is linked to that relating to the admissibility of the evidence of Mr Jarrett dealt with under paragraph (a) above. The refusal of the QRSC to make the disclosure sought by Ms Thomas for the reasons outlined in the Ruling by which Mr Jarrett's evidence has been held to be admissible, also formed the basis of an application by her to have the charge against Mr Justice dismissed. The submission by Ms Thomas was advanced effectively in two stages; firstly at the commencement of the hearing on 23 August 2011 before any evidence had been called and secondly in her legal submissions dated 8 September 2011 lodged after the completion of the taking of evidence. Mr Lange has responded to both submissions. Despite the fact each of the submissions from Ms Thomas is slightly differently focussed we think it preferable to deal with them together.

3.4 In her first submission in relation to the issue of disclosure Ms Thomas submitted the charge should be dismissed because the Informant could not prove its case. This was because the Informant had refused to provide disclosure in relation to the reserve sample analysed by the QRSC which Ms Thomas submitted was fatal to the Informant's case. Ms Thomas developed the submission by reference to paragraphs 5 and 6 of that part of the Harness Racing New Zealand Regulations relating to Notification of Analysis from Samples which provide that it is not a defence to proceedings brought as a result of tests taken under directions contained in the Regulations that there was insufficient urine or blood available for a reserve sample or that the reserve sample was lost or damaged prior to or during analysis. From that Ms Thomas extrapolated a submission it was a defence to such proceedings if the reserve sample test was not completed. She then submitted any Certificate of Analysis arising from such a test must be put to one side because Mr Justice had not been given any opportunity to challenge it. We have assumed, because it is not clear from Ms Thomas' submission, that she is referring to the Certificate of Analysis relating to the reserve sample which she later confirmed had been provided to her. Then by reference to prosecutions taken under the Misuse of Drugs Act 1975 where the prosecution relies on evidence from the Institute of Environmental Science and Research Limited (ESR) to establish a particular substance is a controlled drug under the Act, and disclosure obligations which arise in such circumstances, which she submits are analogous to the present situation, the submission is made that the Informant is not absolved of its obligation to make disclosure where a Certificate of Analysis is challenged. The submission, expanded upon orally by Ms Thomas at the hearing, however, does not proceed to define precisely why in those circumstances, the failure on the part of the QRSC to make the disclosure sought by her was fatal to the Informant's case as she put it.

3.5 Mr Lange responded to these submissions on the basis outlined in paragraph 2.3 of our Ruling on the admissibility of Mr Jarrett's evidence. He submitted that the Informant was under no legal obligation to provide disclosure of materials held by the QRSC which he contended was in relation to the Informant, a third party. In support of that proposition he cited by way of analogy the case of Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 447 in which reference is made to Attorney-General v Otahuhu District Court [2001] 3 NZLR 740.

3.6 Ms Thomas returned to the issue in her legal submissions of 8 September 2011 by referring to s.27 of the New Zealand Bill of Rights Act 1990 which requires a Tribunal or other public authority which has the power to make a determination in respect of a person's rights, obligations or interests protected or recognised by law, to observe the principles of natural justice. Ms Thomas submitted it is a fundamental principle of natural justice that a Defendant be provided with material that might reasonably assist in his or her defence and that in this case the failure of the QRSC to provide disclosure deprived Mr Justice of an opportunity to adduce material to the Committee that might deter (as she put it) a finding that would adversely affect Mr Justice. Later Ms Thomas made the further submission that the failure of the QRSC to provide disclosure prejudiced Mr Justice's defence because it removed any ability on the part of his Counsel to meaningfully question the QRSC Analysts about their analyses and the quantitative results that had been obtained from the analysis of the reserve sample.

3.7 Responding to Mr Lange's submission that in relation to the Informant the QRSC was a third party and under no obligation to provide disclosure of material held by the QRSC, Ms Thomas sought to distinguish the authorities Mr Lange relied on, submitting that one of the authorities referred to in fact supported her submission that failure to make disclosure by the QRSC should result in the charge against Mr Justice being dismissed.

3.8 In our Ruling on the admissibility of Mr Jarrett's evidence we accepted the QRSC should properly be regarded as a third party in its relationship with the Informant based on the authorities cited by Mr Lange and we confirm that finding for the purposes of our decision on this issue. The involvement of the QRSC in the analysis of the reserve sample was due to Mr Justice exercising the right available to him under the Regulations to have the reserve sample analysed and to have the analysis carried out at the QRSC rather than another laboratory. The role of the Informant in that exercise was simply to make the reserve sample available for analysis and to receive the result of the analysis which was also required to be independently reported to Mr Justice who had requested it. Nothing in the relationship between the Informant and the QRSC arising in those circumstances, in our view, gave rise to any express or implicit obligation on the part of the Informant to provide by way of disclosure, material held by the QRSC. Further, nothing was put before us which would indicate the Informant had any enforceable right to require the QRSC to disclose the material sought from it by Ms Thomas. In our view if any such right arose from the procedures leading up to the analysis of the reserve sample by the QRSC that right is likely to have been exercisable only by Mr Justice himself rather than by the Informant.

3.9 As we have noted in our Ruling on the admissibility of Mr Jarrett's evidence the Committee has no power to require any party to make pre-hearing disclosure. Even if there was such a power we doubt it could extend to requiring the Informant to disclose materials in the possession of the QRSC for the reasons referred to in the previous paragraph. The Committee does have the power to refuse to admit evidence where there are proper grounds for doing so. One circumstance where there might conceivably be such a ground is where the Committee is satisfied it would be unfair to admit evidence where a reasonable request for relevant disclosure has been unjustifiably refused and there are proper grounds to conclude a party is prejudiced by the refusal of such disclosure. But in those circumstances the Committee's power is simply to refuse to admit the evidence concerned not to dismiss the charge by reason of the failure to make disclosure which could not otherwise be ordered. In this case for the reasons set out in our Ruling we have held Mr Jarrett's evidence to be admissible. Even if we were to have reached a contrary conclusion, the Informant would still have been left with the evidence of the result of the analysis carried out by the New Zealand Racing Laboratory Services which, putting aside for the moment the challenges made to its accuracy, provides prima facie support for the allegation that "Smoken Up's" DMSO levels exceeded the prescribed threshold at the relevant time. In those circumstances there could be no justification for dismissal of the charges against Mr Justice simply by reason of the failure of the QRSC to make the disclosure Ms Thomas required.

3.10 Even assuming for the purposes of argument the Committee did have power to dismiss the charge against Mr Justice by reason of the refusal of the QRSC to make the disclosure sought by Ms Thomas, we would not have been disposed to exercise it in this case. In order to do so we would have needed to be properly satisfied that within the material withheld by the QRSC was something which was fundamental to Mr Justice's defence of the charge in the sense he could not have received a fair hearing without access to that material. In such circumstances there may have been a basis for the view a continuation with the prosecution of the charge may have infringed his right to natural justice under s.27 New Zealand Bill of Rights Act 1990. In this case however there was no evidence of anything of such a fundamental kind being withheld by the QRSC and given its limited function in this case, we doubt there was likely to be any material of that kind withheld. At best Ms Thomas was able to put her case in this regard no higher than that the refusal to make the disclosure she sought prevented her from meaningfully questioning or challenging the analysis carried out by the QRSC. But Ms Thomas elected not to cross-examine Mr Jarrett when he gave evidence before the Committee when she had the opportunity to raise issues of this kind with him. And we have found in our Ruling on the admissibility of his evidence there was no sufficient basis to conclude that within the material the QRSC refused to disclose, was there anything which compromised the accuracy and validity of the analysis carried out. The same applies in relation to the application to dismiss the charges by reason of the same refusal of the QRSC to make disclosure. To justify that step, on the assumption we have the power to do so, we would have needed to be satisfied of the existence of material not disclosed by the QRSC which prevented Mr Justice from getting a fair hearing on the charge he faces. There was no evidence of the existence of any such material and as recorded, Ms Thomas elected not to cross-examine Mr Jarrett about the possible existence of any such material when he gave his evidence before the Committee. In those circumstances the Committee could not be justified in taking the extreme step of dismissing the charge against Mr Jarrett solely on the basis of speculation such material might exist.

3.11 The application to dismiss the charge against Mr Jarrett by reason of the refusal of the QRSC to make the disclosure sought by Ms Thomas is accordingly dismissed.

(c) The Categorisation of a Breach of R.1004:

3.12 In his opening submissions at the hearing on 23 August 2011 and later submissions on legal issues, Mr Lange submitted that a breach of R.1004 should properly be viewed as "…akin to an offence of absolute liability". In support of that submission he referred to a number of factors which we think it is convenient to list as follows:

(i) the clear purpose of the Rule which Mr Lange submitted was to ensure horses raced free of prohibited substances, an objective which he said had been recognised by those responsible for the promulgation and amendment of the Rule as important in maintaining public confidence in the integrity of harness racing;

(ii) against that clear purpose Mr Lange submitted the provision of sub-rule (4) providing that a breach of sub-rules (2) and (3) was committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse was a clear pointer towards an intent that such breaches should be regarded in the same way as offences of absolute liability. In his submission sub-rule (4) applied even when the circumstances of the case showed the person charged was without fault. In support of that submission he drew attention to the predecessor to R.1004, which was R.340 (4) which provided:

"when a horse, which has been taken to any racecourse for the purpose of engaging in a race, is found by the Judicial Committee to have had administered to it any drug, stimulant or depressant capable of affecting its speed, stamina, courage or conduct the trainer and/or any other person who, in the opinion of the Judicial Committee, was in charge of such horse at any relevant time, may be disqualified for any specified period or for life, his licence may be suspended for any specified period or for life and/or he may be fined a sum not exceeding $2,000.00 by the Judicial Committee unless he satisfies them that he had taken all reasonable precautions to prevent the administration of such drug, stimulant or depressant. In the event of the horse being disqualified for the race by the Judicial Committee, it shall make the appropriate placings of other horses affected accordingly".

(the underlining of the bold passage is for emphasis).

Mr Lange submitted the removal from R.1004 of the reasonable precautions defence found in R.340 (4) and the inclusion of sub-rule (4) was a clear indication the "reasonable precautions" defence hitherto available under R.340 (4) was no longer available and that R.1004 (4) in its clear terms is intended to cover circumstances in which the prohibited substance came to be present in or on the horse without any fault on the part of the trainer or the person left in charge of the horse alleged to be in breach of either sub-rules (2) or (3) as the case may be;

(iii) Mr Lange drew further support for his submission from the Judgment of Panckhurst J in McInerney v Templeton & Ors (CP 187/98; High Court Christchurch; 10 November 1999). In that case Mr McInerney was the trainer of two greyhounds which returned positive tests for a drug following their winning of races at a greyhound race meeting in Christchurch in 1997. Mr McInerney as the trainer of the two greyhounds was charged with two breaches of R.138 (6) of the New Zealand Greyhound Racing Association Rules which provided:

"Where the Judicial Committee finds that a greyhound taken to any racecourse for the purpose of engaging in a race has had administered to it any drug, stimulant or depressant capable of affecting its speed, stamina, courage or conduct, the owner or trainer or other person who, in the opinion of the Judicial Committee was in charge of such greyhound, may be disqualified for any specific period or for life, his licence may be suspended and/or he may be fined and if the greyhound is disqualified the Judicial Committee shall make the appropriate placings of other greyhounds affected accordingly".

Previously R.138 (6) had incorporated a reasonable precautions defence by the inclusion of the words:

"…unless he satisfies the Committee that he had taken all reasonable precautions to prevent the administration of such drug, stimulant or depressant".

But that defence was removed from the Rule when it was amended in 1995 to the form set out above. Mr McInerney was found to have committed breaches of R.138 (6) as charged by a Judicial Committee set up under the Rules, that finding later being upheld by an Appeals Tribunal. In the course of the hearing before the Judicial Committee Mr McInerney's Counsel had submitted that R.138 (6) should be treated as akin to an offence of strict liability and susceptible to a defence that all reasonable precautions had been taken. The Judicial Committee rejected the submission and following its Decision being upheld by the Appeals Tribunal, Mr McInerney instituted Judicial Review proceedings in which, inter alia, the Judicial Committee's finding that R.138 (6) should not be treated as the equivalent of an offence of strict liability was challenged. In dealing with that submission Panckhurst J noted R.138 (6) was in the nature of what he called a "status offence"; that is an offence simply requiring proof (in this instance) of the fact Mr McInerney was the trainer or person in charge of the greyhound which had been taken to a race meeting when the fact, or circumstance, of the administration of a performance affecting drug to it was established. Panckhurst J considered that such an interpretation reflected the plain purpose of the Rule which was to ensure greyhounds competed on level terms and no dog had present in its system any drug capable of affecting its performance. Noting that against that purpose the Rule had been amended in 1995 to remove the reasonable precautions defence, Panckhurst J concluded:

"But accepting the Rule as it is now drafted, I see no basis for importing an absence of fault or due diligence defence."

One aspect of the Judge's reasoning was that under the relevant penalty provisions the Judicial Committee enjoyed what he called "an unfettered discretion" as to disqualification of the greyhound and the penalty to be imposed on the trainer or person in charge of the greyhound, noting it need impose no personal penalty at all.

Panckhurst J's view of how the Rule should be interpreted and applied was subsequently upheld by the Court of Appeal.

Mr Lange drew the obvious comparison between the form of R.1004 in this case, its prior amendment and the inclusion of sub-rule (4) with R.138 (6) of the Greyhound Association's Rules as it was interpreted and applied in the McInerney case to reinforce his submission that the proper interpretation of R. 1004 did not permit a reasonable precautions or absence of fault defence and that it should properly be regarded as akin to an offence of absolute liability.

3.13 Ms Thomas on the other hand, submitted that a breach of R.1004 should be treated as the equivalent of an offence of strict liability, that is an offence which admits of what is commonly called a no fault defence. Ms Thomas developed the submission by pointing to the provisions of R.1008 which provides:

"1008 In the absence of any express provision to the contrary in any proceeding for a breach of these Rules: -

(a) it shall not be necessary for the Informant to prove that the Defendant or any person intended to commit that or any breach of the Rule; and

(b) any breach of a Rule shall be considered as an offence of strict liability"

The Rules do not define what is meant by an offence of strict liability but we have no reason to suppose it is intended to mean anything other than what it is now commonly understood within this country to mean in a legal setting, that is an offence where liability is established on proof of the proscribed act or omission subject to the person charged being exonerated on proof the proscribed act or omission occurred or arose without fault on his/her part. In such cases the obligation to establish absence of fault lies with the party seeking to invoke the defence which is to be proved on the balance of probabilities. While acknowledging R.1004 (4) was a pointer to a breach of R.1004 (2) being regarded as one of absolute liability Ms Thomas submitted it was not "…an express provision to the contrary…" within R.1008 and that R.1008 (b) applied to require the breach to be treated as the equivalent of an offence of strict liability.

3.14 Ms Thomas drew further support for her submission by referring to the following additional matters; firstly the rule of interpretation which requires the interpretation most favourable to a defendant to be preferred where a provision is reasonably capable of two interpretations. In this regard Ms Thomas submitted R.1004 was open to two interpretations because sub-rule (4) did not expressly and unequivocally state the offence was one of absolute liability. Had that been intended, she submitted, those responsible for the drafting of the Rule could easily have said so. Therefore she submitted R.1008 should prevail.

3.15 Next, as an extension of the previous submission, Ms Thomas submitted by reference to two leading authorities in this country on the classification of offences, that the categorisation of offences as absolute liability offences should be considered as the exception rather than the rule and that should apply equally to HRNZ's Rules where the issue of categorisation of a breach arose. She then referred to a decision of the New South Wales Racing Appeals Tribunal delivered on 9 February 2011 in the case of a trainer named Peter Russo who had appealed against a finding that he had breached R.190 (1), (2) and (4) of the Harness Racing Rules. R.190 provided as follows:

"(1) a horse shall be presented for a race free of a prohibited substance
(2) if a horse is presented for a race otherwise than in accordance with sub-rule (1) the trainer of the horse is guilty of an offence
(4) an offence under sub-rule (2)…is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse"

As can be seen, with some minor variations in language, R.190 (1), (2) and (4) is effectively the same as R.1004 (1), (2) and (4) of the New Zealand Rules. Ms Thomas drew attention to the fact that in the course of its decision in the Russo case the New South Wales Racing Appeals Tribunal referred to the fact that R.190 was drawn in terms that created a strict liability offence. Ms Thomas also drew support for her submission from the fact a breach of R.1004 carried serious consequences in terms of the maximum penalties provided and what she called the "secondary consequences of impairment of reputation and interference with livelihood" which followed from a breach of the Rules. Drawing on an observation made in one of the authorities referred to previously, she said such consequences, one of which she characterised as "mandatory", further told against R.1004 being regarded as the equivalent of an offence of absolute liability.

3.16 Finally by reference to what she called the "contingent nature" of liability under R.1004 and the object and purpose of the Rules which she said were to ensure the integrity of the harness racing industry, Ms Thomas submitted R.1004 should be treated as the equivalent of an offence of strict liability. She submitted that the objective of ensuring integrity in the industry was not advanced by interpreting R.1004 in such a way "that a blameless trainer who has taken all reasonable steps faces suspension and disqualification". She illustrated the point by noting that if R.1004 was treated as the equivalent of an offence of absolute liability it would mean "conviction" for the trainer and disqualification of the horse even if it was conclusively proved a competitor had "drugged" the animal. Her submission was that in such circumstances a breach would be proved against the trainer for an event or occurrence that was completely out of his control. Such consequences she submitted also significantly told against R.1004 being treated as the equivalent of an offence of absolute liability.

Discussion:

3.17 The purposes of R.1004 (1) are plain enough. Firstly it is designed to ensure that horses race on even terms unaffected by the ingestion or administration of substances deemed to be Prohibited Substances under the Rules. In that respect the Rule is a critical aspect of maintaining the integrity of harness racing. Secondly, and perhaps no less importantly, the Rule is designed to protect and preserve the health of horses by endeavouring to ensure they do not race while affected by substances which may affect performance but which are at the same time injurious to their health. Sub-rule (2) recognises the reality that horses taken, or to be taken to a racecourse for the purpose of engaging in a race will at relevant times be under the supervision or control of the trainer or some other person to whom he has delegated that responsibility and that the objective of ensuring compliance with sub-rule (1) is best achieved by making the trainer (or the person left in charge of the horse where sub-rule (3) applies) liable under those sub-rules in any case where there is non compliance with sub-rule (1). Neither sub-rule (2) or (3) require proof of complicity in, or knowledge of the ingestion or administration of any prohibited substance to a horse on the part of the trainer or person left in charge of the horse, for there to be liability under those sub-rules. The policy which lies behind the Rule, reflected in the way in which the sub-rules are drafted, is that the objective of compliance with sub-rule (1) is best achieved by imposing liability on the trainer or person left in charge of the horse in the situations to which sub-rules (2) and (3) apply without the need to prove any culpable conduct on their part. As noted this reflects the reality of who has charge of or ultimate responsibility for the horse when it is taken, or is to be taken to a racecourse for the purpose of engaging in a race, and who is best placed to ensure compliance with sub-rule (1).

3.18 Against that background the history of R.1004 and the amendment of its predecessor to R.1004 in its present form is a matter of significance. As noted by Mr Lange in his submissions R.340 (4), set out previously, was the predecessor to R.1004. R.340 (4) specifically provided for a defence if the person charged satisfied the Judicial Committee he had taken all reasonable precautions to prevent the administration of the drug, stimulant or depressant to the horse. When the Rules were restructured in 1996 R.340 (4) became R.1004 and following further amendment in 2003, R.1004 has been in the Rules in the form set out earlier in this Decision. In its present form R.1004 is significantly different from its predecessor in two respects; firstly the "reasonable precautions" defence has been removed, and secondly sub-rule (4) which provides that breaches of sub-rules (2) and (3) are committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse has been included in the Rule. The significance of those changes from the old Rule 340 (4) is in our view, obvious enough. The clear intent of the framers of R.1004 as it now stands was to remove the defence of reasonable precautions previously available, and by the inclusion of sub-rule (4) to give emphasis to and extend that by providing that there will be liability under sub-rules (2) and (3) regardless of the circumstances in which the prohibited substance came to be present in or on the horse. Those changes, in our view, point unmistakeably to an intention on the part of the framers of the Rule that a defence of reasonable precautions or absence of fault on the part of the trainer or person left in charge of the horse in the circumstances to which sub-rules (2) and (3) are directed, should not be available.

3.19 R.1008 (b) however applies to require any breach of a Rule to be considered as an offence of strict liability in the absence of any express provision to the contrary. In her submissions Ms Thomas contended that R.1004 (4) was not such a provision because it did not expressly and unequivocally state that a breach of the Rule was to be treated as an offence of absolute liability. Notwithstanding the term "express provision" in R.1008 we do not consider that in order to avoid the application of paragraph (b) of that Rule a particular provision in the Rules must specifically state in terms that it is an exception to, or outside the operation of, R.1008 (b). It is enough in our view if the particular Rule contains a provision which properly interpreted and applied operates in a way that is inconsistent with the concept of a strict liability offence. That is the position, as we find it, in relation to R.1004 as it now stands. Interpreted against the background of its predecessor, R.340 (4), and drawing from that what we think is the obvious significance of R.1004 (4) and the removal of the reasonable precautions defence, we think it is clear that the Rule properly interpreted and applied removes the availability of a no fault defence which is a fundamental feature of an offence of strict liability as it is understood in this country.

3.20 That interpretation accords with the interpretation and effect of R.138 (6) of the Rules of the New Zealand Greyhound Racing Association (Incorporated) by Panckhurst J in the McInerney case referred to earlier. R.138 (6) was drawn in not dissimilar terms to R.1004 and like that Rule had previously been amended to remove what is described in the Judgment as an "all reasonable precautions" defence. At paragraph [17] of the Judgment, in response to a submission from Counsel that R.138 (6) should be construed as a strict liability provision, subject to an all reasonable precautions defence, Panckhurst J said he could see no basis for importing an absence of fault or due diligence defence. He recorded that his reasons for that view appeared sufficiently from his prior discussion concerning the purpose and effect of the Rule, which we think apply equally, despite the different settings, to R.1004. As noted previously, the Judgment of Panckhurst J in that case was later upheld by the Court of Appeal.

3.21 In reaching that conclusion we have not overlooked the other points made by Ms Thomas. Specifically, in light of the changes affected between R.1004 and its predecessor R.340 (4) we did not think R.1004 was open to two interpretations as Ms Thomas submitted so as to make the rule that the interpretation most favourable to a defendant should be preferred applicable in this instance. For the reasons we have given we think the implications of the removal of the reasonable precautions defence and the inclusion of R.1004 (4) are sufficiently plain and explicit in their intent as to negate any necessity to invoke the rule of interpretation referred to. It is true that in the Judgment of the Australian case of Russo referred to by Ms Thomas the Appeal Tribunal referred to the fact R.190 of the Harness Racing Rules was drawn in terms that created a strict liability offence and a similar observation about R.190 was made in the other Judgment referred to in that case at paragraph 21, namely Wonson v Greyhound and Harness Racing Regulatory Authority [2005] NSWSC 585. The latter case also contained a reference by the Tribunal at first instance to R.190 being an "absolute liability offence". There may be differences in approach and concept which explain the apparently different view taken of R.190 in the Australian authorities referred to and it may be R.190 does not have the same history of amendment and reformulation that R.1004 has; certainly there is nothing in the two Judgments referred to which indicates that may be the case. In any event even if there is conflict between the Australian approach to R.190 and the view we have taken of R.1004 in this case, we think our view of R.1004 is consistent with the history and reformulation of the Rule as we have explained it and is consistent also with the approach taken by Panckhurst J to the Rule dealt with by the Judge in the McInerney case, drawn in not dissimilar terms to R.1004, (absent R.1004 (4)), whose interpretation of the Rule was later upheld by the Court of Appeal.

3.22 As to the effect of the consequences provided for a breach of R.1004 (2) we note the penalties provided in sub-rule (7) are maximum penalties only and there is a discretion given to the Judicial Committee to impose whatever penalties (if any) it considers warranted by the circumstances and culpability of the breach. That discretion is available in circumstances where a breach is proved under sub-rule (2), as we have interpreted it, to ameliorate any perceived harshness arising from an adverse finding where there is no or minimal culpability on the part of the trainer or person left in charge of the horse. In those circumstances, given the purposes of R.1004 as we have explained it, we do not see that the penalties provided for the breach of the Rule necessarily tell against treating the Rule as the equivalent to an offence of absolute liability with the same force as Ms Thomas submitted. The requirement for mandatory disqualification of the horse provided for in R.1004 (8) is in a different category from the penalty provisions which applied in the McInerney case referred to earlier and reflects the fundamental concern to maintain the integrity of harness racing by ensuring horses race on even terms unaffected by prohibited substances. Mandatory disqualification from a race in which the horse is entered when it is not free of a prohibited substance enhances the achievement of that objective and is entirely consistent with the rationale underpinning the Rule, irrespective of the culpability or otherwise of the trainer or person left in charge of the horse who may be liable for breaches of sub-rules (2) or (3). The liability to a period of disqualification for a period not exceeding five years is again a matter for the discretion of the Judicial Committee exercisable according to the same considerations that apply to the penalties provided for in sub-rule (7). The consequences of treating R.1004 as equivalent to an offence of absolute liability detailed by Ms Thomas and recorded previously in paragraph 3.16 of this Decision can properly be accommodated within the discretion the Judicial Committee has as to the imposition of penalty and we do not regard those possible consequences as of sufficient moment to require us to interpret and apply R.1004 in any different way from that which for the reasons detailed, we think it is required to be interpreted and applied.

3.23 In the result we find that R.1004 is to be interpreted and applied as it has been formulated without importing into the Rule an absence of fault or reasonable precautions defence.

(d) When is a horse presented for a race for the purposes of R.1004 (1):

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.

(e) The Standard of Proof:

3.27 R.1008A provides:

"1008A Where in any proceeding, any matter as required to be proved by an informant or defendant, the standard of proof shall be the balance of probabilities."

Ms Thomas however submitted that the standard of proof required to prove the charge against Mr Justice in this case is higher than the balance of probability standard required by R.1008A. She sought to illustrate this by reference to two harness racing cases. In the first, in a case of improper driving, the Tribunal in dealing with the standard of proof after acknowledging the standard required by the Rules was the balance of probabilities standard, indicated it thought the test should be "…would a reasonable person with a knowledge of driving have considered Mr Butcher's actions to be not normal and therefore improper". In the second case which involved charges of improper or careless driving the Judicial Committee stated that because the charge of improper driving was of a serious nature the standard of proof required was "…higher than the usual balance of probabilities". Noting the maximum penalties for breach of the Rules with which Mr Justice is charged in this case are higher than for charges of improper driving, Ms Thomas submitted that proof of the charge against Mr Justice required a higher standard than on the balance of probabilities. By reference to the case of Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 she submitted the standard of proof the Committee ought to apply is whether the charge has been proven to its "reasonable satisfaction" which she said required a "high factual standard" before any element of the charge could be found to have been proved.

3.28 If the Decisions in the two harness racing cases referred to by Ms Thomas are cited as authorities for the proposition we are bound to apply a standard of proof higher than the balance of probabilities required by R.1008A then we are bound to say we think those cases, in that respect, have been wrongly decided. In our view R.1008A is clear that we are required to apply a balance of probability standard of proof and nothing in the submissions made by Ms Thomas has persuaded us otherwise. However as the majority of the Supreme Court made plain in its Judgment in Z, inherent in the application of the balance of probabilities standard of proof is what it called "a flexibility" to be applied according to the seriousness of the matters to be proved and the consequences of proving them. As the Court explained that flexibility relates to the quality of the evidence required to prove such matters rather than elevating the standard of proof itself beyond the balance of probabilities. Guided by the requirements of Rule 1008A and the authority of Z the standard of proof we consider we are required to apply in this case, and which we have applied, is the balance of probabilities.

4. The Evidence for the Informant:

4.1 As recorded earlier, evidence was given by eleven witnesses for the Informant and eight for Mr Justice, including Mr Justice himself over three days of hearing on 23, 24 and 30 August 2011. Much of the evidence related to matters not in issue or which are of marginal relevance, at least for present purposes, given the conclusions we have reached in relation to the legal issues previously dealt with in this Decision, in particular the categorisation of a breach of R.1004 (1) and (2) and when a horse is presented for a race for the purposes of R.1004 (1). For that reason the narrative of the evidence which follows will be an outline only in relation to those aspects not in issue or of marginal relevance, with greater detail where necessary, in relation to aspects on which the critical issues for determination in this case turn.

4.2 "Smoken Up" was brought to New Zealand from Australia in the week prior to the commencement of the Inter Dominion Pacing and Trotting Championships which ran over three nights on 25 March 2011 and 4 and 8 April 2011 with the finals being run on the last mentioned date. Following its arrival in the country, "Smoken Up" was stabled at the stables of Mr Richard Brosnan located at Ardmore in the south Auckland area. From the time of its arrival and for the duration of the Inter Dominion Championships the horse was in the care of Mr Justice who stayed on Mr Brosnan's property apart from two or three nights when he was away for what appear to have been social reasons. According to the evidence given by both Mr Brosnan and Mr Justice nothing was given or administered to the horse over the time it was stabled at Mr Brosnan's property which would explain the elevated DMSO levels the Informant alleges was shown in the urine sample taken from "Smoken Up" following the running of the Pacers Grand Final on the evening of 8 April 2011, nor could either of them give any other possible reason for the elevated DMSO level.

4.3 Apart from the urine sample taken from "Smoken Up" following the Pacers Grand Final on 8 April 2011 the horse provided other samples prior to and during the Inter Dominion Championships. On 22 March 2011 a blood sample was taken from "Smoken Up" as part of the testing of all horses competing in the carnival for the purposes of analysis in relation to "Out of Competition Prohibited Substances". Forty-five samples were taken in all and on subsequent analysis none were found to contain an Out of Competition Prohibited Substance. On the first day of the carnival, 25 March 2011 "Smoken Up" ran in Race 6. Prior to the race a blood sample was taken from the horse for TCO2 (total carbon dioxide) testing and following the race a urine sample was taken. Analysis of the blood sample revealed no elevated TCO2 level. On 1 April 2011, the second night of the carnival, "Smoken Up" ran in Race 8. Following the completion of that race the horse again provided a urine sample. Both that sample and the sample taken earlier on 25 March 2011, on subsequent analysis revealed the presence of DMSO at concentrations of 9.3 mg/L and 2.1 mg/L respectively.

4.4 On 4 April 2011 a further blood sample was taken from "Smoken Up" as part of Out of Competition testing of the horses that were to run in the Pacers Grand Final on the 8th April 2011. Fifteen blood samples were taken in total and subsequently analysed for Out of Competition Prohibited Substances. None were detected. Neither those blood samples nor those taken on 22 March 2011 were analysed for DMSO as DMSO is not classified as an Out of Competition Prohibited Substance as listed in the Harness Racing New Zealand Regulations.

4.5 On 8 April 2011, the day of the finals, "Smoken Up" was taken to the racecourse by Mr Brosnan in his truck. He was accompanied by Mr Justice and Mr Justice's partner Ms Giles. Mr Brosnan thought they arrived at the racecourse about one hour before the first race. "Smoken Up" was then stabled alongside two horses Mr Brosnan had competing that evening. At 8:48 pm a blood sample was taken from "Smoken Up" for the purpose of determining its TCO2 level. That sample was taken in the presence of Ms Giles.

4.6 The Pacing Grand Final won by "Smoken Up" began at 9:43 pm and was completed when "Smoken Up" passed the winning post at just after 9:46 pm. "Smoken Up" was driven in the race by Mr Justice. According to the evidence given by Mr Justice, following completion of the race photographs were taken and he was interviewed on the track by a number of people as walked the horse up and down the straight a couple of times. He said as he turned to leave the track a rug was put on "Smoken Up" and an Official approached him and asked whether someone else could take the horse to the stalls as he, Mr Justice, was needed at the presentation. At that point Mr Justice handed "Smoken Up" over to Mr Brosnan who said in evidence he then walked the horse down through the stables to where it was to be put in its stall. He said when he arrived to take control of the horse "Smoken Up"  had a garland of flowers around its neck and was covered with a dress rug. Ms Amanda Grieve gave evidence that on the night of the finals it was her function to lead the race winners back into the birdcage area and there perform duties which included taking tongue ties off the horses. She said that she had removed the tongue tie from "Smoken Up" that evening and was present when a garland of flowers had been put around the horse's neck. From the sequence of events described by the witness it would appear Ms Grieve's contact with "Smoken Up" occurred just before or at about the same time as Mr Brosnan took control of the horse. Ms Grieve said she was aware of the substance DMSO and that it had a distinctively pungent odour. When questioned by Counsel, Ms Grieve said she had not been in contact with DMSO on or around 8 April 2011 and it had been her practice to wash her hands after removing the tongue ties and carrying out her other duties in relation to each of the horses she dealt with on that evening. When asked whether she had smelt DMSO emanating from the garland of flowers or from the tongue tie when she removed it from "Smoken Up" Ms Grieve said she had not smelled anything of that kind. She said she thought that had DMSO been present she probably would have smelt it.

4.7 Evidence was also given by Ms Sharon Winter who had made up the garland of flowers put around "Smoken Up's" neck following the race. Ms Winter explained that the garland of flowers was made up from silk flowers on a green hessian backing. Her description of how the garland of flowers is made up and assembled contained no indication of the presence of DMSO.

4.8 At about the time "Smoken Up" came off the track Mr Brosnan met up with Mr Philip Whitcombe an official employed by the club to assist in the taking of urine and blood samples. Mr Whitcombe said in evidence that he followed Mr Brosnan and "Smoken Up" as they proceeded to "Smoken Up's" allocated stall. Both Mr Whitcombe and Mr Brosnan confirmed no one touched "Smoken Up" as he was walked back to the stall. Mr Brosnan said when he arrived at the stalls with "Smoken Up" the garland of flowers and dress rug had to be removed and the harness unhitched. Once that was done "Smoken Up" was taken into the stall, the cart was removed and the horse was turned around. Mr Brosnan said that at that point Ms Giles arrived. He said someone whose identity he was uncertain of removed the garland of flowers and assisted with the unhitching of the horse. He said at that time there seemed to be about 10 – 15 people in the vicinity who had followed him and the horse as he walked through the stables. Mr Whitcombe for his part confirmed there were a number of people around the stall. At the stall there was a bucket of water and molasses which had previously been made up by Mr Brosnan. At some point shortly after the horse arrived at the stall and prior to it being taken to the swabbing box, Ms Giles offered "Smoken Up" a drink from the bucket. This was seen by Mr Whitcombe who immediately intervened and stopped it. According to Mr Brosnan the horse had its head in the bucket for about a second. Mr Whitcombe was uncertain whether "Smoken Up" actually drank anything from the bucket but Mr Brosnan, for his part, thought the horse would have got no more than one mouthful but did not appear to be clear about that.

4.9 Mr Brosnan confirmed under cross examination he did not put DMSO in the bucket and he did not have DMSO on him. He said at no point after "Smoken Up" came in from the race did he detect what he agreed was the distinctive smell of DMSO. He confirmed the bucket with the water and molasses mixture was left unattended while he went to watch the running of the Pacers Grand Final and said he thought there could have been people walking through the stables at that time although he wasn't aware of who had remained in the stables. In his written Brief of Evidence Mr Brosnan said that while "Smoken Up" was in the stabling area there were many non-connections present who were touching and patting the horse. However when questioned more closely about this Mr Brosnan said the only persons who touched the horse were Ms Giles, the unknown person who helped ungear the horse, himself and his daughter who he said was the only person he saw pat the horse. Earlier when interviewed by Mr Cameron George the Chief Stipendiary Steward of the Racing Integrity Unit on 21 April 2011, Mr Brosnan confirmed that in the whole lead up to the swabbing of "Smoken Up" no-one touched the horse apart from he and Ms Giles. Mr Brosnan told Mr George he and Ms Giles were the only ones that had any kind of contact with the horse that he was aware of.

4.10 After "Smoken Up" had been ungeared Mr Brosnan took him to the wash bay where the horse was washed down and shortly after towelled off. It was at that point Ms Giles offered the horse a drink from the bucket of water and molasses previously prepared by Mr Brosnan. As recorded, Mr Whitcombe intervened. Mr Brosnan then put a dress rug on "Smoken Up" and walked him over to the swabbing box. The horse was unable to enter the swabbing box immediately and Mr Brosnan said he walked him around the carpark for about 3-5 minutes before he was taken into the swabbing box. Mr Brosnan said that no-one approached the horse during that time.

4.11 The swabbing of "Smoken Up" was undertaken by Dr Andrew Grierson who said he had been a racetrack Veterinarian for 25 years and the Chief Veterinarian for HRNZ since 2004. Dr Grierson is the author of the New Zealand Veterinary Association's Code of Practice for Raceday Veterinarians. "Smoken Up" was presented for swabbing at 10:05 pm. At that time both Mr Brosnan and Mr Whitcombe were present. Dr Grierson personally obtained the urine sample from "Smoken Up" at 10:10 pm as recorded in the swab card No.32909/2048884 signed by both he and Mr Brosnan. Dr Grierson said that was the only urine sample he personally took from a horse that evening. Dr Grierson confirmed the swabbing was carried out in accordance with the required protocols which are those set out in the swabbing instructions contained in the Regulations. It is not necessary for the full swabbing instructions to be set out here but we note one of the requirements is that the horse to be swabbed is not permitted to eat or drink without the consent of the Racecourse Inspector, club official or Veterinary Surgeon before a urine sample is taken. Further requirements are that the person involved in taking the sample thoroughly wash their hands, ensure the saucepan in which the sample is to be collected is washed and where practicable wear gloves prior to collecting the sample. Dr Grierson was cross examined by Ms Thomas at some length in relation to these latter requirements but we are satisfied from the evidence he gave they were each satisfactorily complied with. Dr Grierson did however acknowledge he had made an error in the swab book produced as Exhibit "C" which recorded the swab as 32909/204884. Dr Grierson omitted to include an 8 in the figures 204884 which should have read 2048884. It was put to Dr Grierson he had made a further error when he had recorded himself as the Steward in the swab book as well as the Veterinary Surgeon. However Dr Grierson did not accept that was an error, maintaining in fact he was the Steward in as much as he was the person who took the swab from "Smoken Up". On further questioning by Ms Thomas Dr Grierson said he had not been aware that "Smoken Up" may have had a drink of water before being swabbed but had he been so aware he would have taken a sample of the water. He further confirmed the bottle and pot (as he called it) preparation for the taking of the urine sample from "Smoken Up" was in accordance with Appendix 2 of "A Code of Practice for the Official Veterinarians at Thoroughbred and Harness Race Meetings", an extract of which he produced as Exhibit "D". The Appendix effectively duplicates the requirements of the swabbing instructions in the Regulations and we were satisfied from the evidence we heard that the taking of the urine sample from "Smoken Up" and the fashion in which it was packaged for despatch to the laboratory for analysis was also in conformity with the requirements outlined in the swabbing instructions in the Regulations.

4.12 Prior to the taking of the evidence from Professor Tobin by videoconference facility from the United States Ms Thomas advised there was no issue as to the chain of evidence in relation to the taking of the urine sample from "Smoken Up" on the evening of 8 April 2011 to its receipt at the New Zealand Racing Laboratory Services Laboratory at Avondale in Auckland. The evidence was that the sample was received at the laboratory along with others at 8:00 am on 11 April 2011 after having been held in a locked refrigerator in the swab clinic after it was taken from "Smoken Up" on the evening of 8 April 2011. On receipt at the laboratory sample number 32909 was found to have all seals intact and was assigned the unique laboratory number 11/2688. The sample consisted of a duplicate urine sample and a bottle of control fluid. The sample was logged according to a system used by the laboratory which required removing the urine sample with the greatest volume and treating it as the primary sample. The remaining sample was treated as the reserve sample and was along with the control fluid sample placed in a storage bin in a refrigerator in the main laboratory area. The primary sample was placed on a tray with other samples and stored in the same refrigerator. On the same day as receipt of the sample a portion of the primary sample was taken for routine screening analysis. That analysis was carried out by Mr Craig Gardner a scientist employed by the laboratory the following day, 12 April 2011. The purpose of the screening analysis was to detect the presence or otherwise of DMSO in the urine sample. For the purpose of the screening analysis the samples were grouped in threes. Analysis of the group which included that assigned laboratory number 11/2688 returned a DMSO level of 8.5 mg/L and was flagged for further analysis as the finding indicated one of the samples could be in excess of the 15 mg/L threshold.

4.13 The following day, 13 April 2011, Mr Gardner conducted what he called a query analysis on fresh portions on the group of three samples (including sample 11/2688) analysed the previous day. The purpose was to determine which of the three samples in the group, if any, exceeded the 15 mg/L threshold. On this analysis sample 11/2688 showed a DMSO level in excess of 25 mg/L and was what Mr Gardner described as "flagged as suspect for exceeding the threshold level of 15 mg/L". On 15 April 2011 two confirmatory analyses for DMSO on fresh portions of sample 11/2688 were carried out by Mr Gardner and Mr Robert Howitt an Analytical Chemist of eleven years experience who had been employed as a Racing Analyst with the New Zealand Racing Laboratory Services since 2003. On this occasion both qualitative and quantitative procedures were performed. The qualitative analysis confirmed the presence of DMSO in the sample and the quantitative analysis confirmed its level in the sample at 25.8 mg/L. Mr Gardner also confirmed that on 21 April 2011 he conducted a qualitative analysis on fresh portions of urine samples taken from "Smoken Up" on 25 March 2011 (sample 11/2308) and 1 April 2011 (sample 11/2487) for DMSO under the supervision of the official racing analyst Dr Geoffrey Beresford. Mr Gardner said DMSO was detected in both samples at concentrations of 2.1 mg/L and 9.3 mg/L respectively.

4.14 Under cross examination and questioning from the Committee Mr Gardner explained that the analyses described in the previous paragraph were carried out with the use of an instrument called a liquid extraction gas chromatography mass spectrometer. 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. He also explained in some detail the process by which the confirmatory analysis was undertaken. This involved two separate analyses of the urine sample taken from "Smoken Up" which Mr Gardner referred to as the A and B samples. Mr Gardner analysed two samples or replicates from the B sample which he said showed DMSO levels of 25.74 mg/L and 25.90 mg/L respectively giving an average between the two of 25.8 mg/L. He said it was not possible to quantify the DMSO levels in the A sample which had been analysed by Mr Howitt beyond confirming it was in excess of 25 mg/L because of an error made in the calibration for the testing of that sample. Mr Gardner was also questioned about the blood sample taken from "Smoken Up" at 8:48 pm on 8 April 2011 for TCO2 testing. He said the blood sample would have been destroyed in the week following the reporting of the TCO2 results which he confirmed in this case would have been after the first urine tests on "Smoken Up" revealed the presence of DMSO. As he explained in cross examination, because of the way in which samples were labelled within the laboratory following receipt he had no way of knowing which urine or blood sample received was taken from any particular horse. He described the process as "blind testing".

4.15 Mr Gardner was followed in evidence by Mr Robert Howitt who confirmed he had analysed the A sample in the confirmatory analysis carried out on 15 April 2011 and he could not quantify the DMSO level in that sample, beyond confirming it showed a DMSO level in excess of 25 mg/L, because of what he described as an invalid calibration. Mr Howitt said that on 20 April 2011 he undertook a further analysis of two portions of the control sample associated with sample 11/2688 which revealed DMSO was not present in either portion. He said this analysis confirmed the trace levels of DMSO determined in the control sample analysed on 15 April 2011 was due to instrument contamination. He explained because of the make up of the instrument used for carrying out the analysis and the way in which analyses are conducted, the system could become contaminated by the DMSO from previous runs. As a result of the finding of the trace levels of DMSO in the control samples in the analysis carried out on 15 April 2011 he said it was decided to reanalyse the control sample on 20 April 2011 after carrying out maintenance on the instrument to remove any contamination. Mr Howitt said the subsequent analysis of the control sample he carried out was negative for DMSO which confirmed the trace levels found on 15 April 2011 were due to instrument contamination.

4.16 Mr Howitt also gave evidence that on 20 April 2011 a request was received from HRNZ to test urine samples 32877 and 32787 for the presence of DMSO. These were urine samples taken from "Smoken Up" on 25 March 2011 and 1 April 2011 respectively. He confirmed the evidence given previously by Mr Gardner that the samples were analysed by Mr Gardner on 21 April 2011 and that he checked the results which confirmed DMSO levels in the samples were 2.1 mg/L and 9.3 mg/L respectively. Mr Howitt also said that subsequently at the request of HRNZ Mr Gardner undertook, under his supervision, an analysis of several blood samples which had been taken from horses for the purposes of out of competition testing. He said all samples analysed gave results of less than 0.1 mg/L of DMSO.

4.17 Mr Howitt was followed in evidence by Dr Geoffrey Beresford the Official Racing Analyst and the General Manager of New Zealand Racing Laboratory Services Limited. Dr Beresford said he held the degree of Doctor of Philosophy in Chemistry and was a Fellow and Past President of the Association of Official Racing Chemists, an international association of which he had been a member since 1986. He said he had over 26 years experience in analytical chemistry in the racing industry. Dr Beresford explained that the laboratory of which he was the General Manager was audited by International Accreditation New Zealand on 15 February 2011 to assess compliance with ISO:17025 "general requirements for the competence of testing and calibration laboratories". He said the laboratory had been recommended for accreditation to that standard on 16 February 2011 and the proposed scope of accreditation included the quantitative determination of DMSO in urine by the laboratory method "NN-25; DMSO by LLE-GC/NS" and that no corrective actions or recommendations arose from the method. He said the accreditation process was ongoing at the time he gave his evidence. It is to be noted the method by which the various analyses undertaken by Mr Gardner and Mr Howitt in this matter, as previously recorded, were all conducted by the method referred to by Dr Beresford as within the proposed scope of accreditation for which his laboratory had been recommended on 16 February 2011.

4.18 Dr Beresford was cross examined at some length by Ms Thomas about a range of matters, mostly, but not entirely, arising from evidence to be later given by Dr Denis Lauren who was subsequently called as a witness for Mr Justice. Dr Beresford had been provided with a Brief of Dr Lauren's evidence prior to giving his evidence and the matters on which he was questioned related to a range of technical aspects of the analytical processes and procedures carried out in Dr Beresford's laboratory for the analysis of samples including the samples taken from "Smoken Up". Rather than detail the various matters put to Dr Beresford and his responses to them at this point we think it preferable to deal with them later in this decision when we come to assess the validity and impact of Dr Lauren's criticisms of the analytical procedures carried out in Dr Beresford's laboratory in terms of the submissions made by Counsel. At this juncture it is enough to record that under cross examination and questioning from the Committee, Dr Beresford:

(i) said 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. Dr Beresford made the further point that in order for his laboratory to analyse the control sample for the purpose of the analysis of the urine sample taken from "Smoken Up" it was necessary to break the seal on the bottle containing the control sample as a result of which the forensic integrity of the control sample could no longer be assured, leaving open the possibility contamination could occur prior to or in transit to Australia leading to a potentially misleading result in the analysis carried out by what he referred to as the "referee" laboratory. Conversely, the control sample could not be sent to the referee laboratory forensically intact as that would obviously prevent his laboratory from carrying out a proper analysis of the urine sample;

(ii) confirmed the trace levels of DMSO found in the control sample tested on 15 April 2011 was not the result of a failure or error within his laboratory. Dr Beresford said trace levels found in the control sample were simply a function of the way in which the instrumentation was used to carry out the analysis as explained previously by Mr Howitt and that the absence of DMSO in the control sample was confirmed by the subsequent analysis carried out and described by Mr Howitt in his evidence;

(iii) confirmed that blood samples sent to the laboratory for analysis are destroyed once testing has been completed and there is no further use for them. He said no record of the destruction of the sample was kept and he was comfortable with that process as it had not been challenged as a corrective action by IANZ within the accreditation process earlier referred to. In that regard Dr Beresford also confirmed the evidence previously given by Mr Gardner that because of the labelling procedures adopted for samples received for analysis no urine or blood sample received and analysed in the laboratory could be linked to a particular horse from the material provided to and held within the laboratory.

4.19 An Affidavit sworn by Mr Rod Carmichael on 11 August 2011 was tendered in lieu of Mr Carmichael giving evidence before the Committee. In his Affidavit Mr Carmichael confirmed he was a Racecourse Inspector employed by the Racing Integrity Unit as the Chief Racing Investigator. He described the part he played in the obtaining of blood and urine samples prior to, and over the course of the Inter Dominion Championships which included the taking of the blood and urine samples from "Smoken Up" as detailed earlier in this Decision. He produced within a bundle of exhibits various swab cards and swab book records relating to the taking of those samples. Mr Carmichael said at the conclusion of the race programme on 8 April 2011 he personally checked the samples which had been taken against the swab cards and swab book and was present with Dr Grierson when the various samples were placed in transit bags, sealed and deposited in a locked refrigerator in the swab clinic. Mr Carmichael said that on 21 April 2011 he travelled to the stables of Mr Justice located at Melton in Victoria where he spoke with Mr Justice and advised him of the result of the analysis of the urine sample taken from "Smoken Up" on 8 April recorded under swab card number 32909. He said he handed Mr Justice a Certificate of Analysis of that sample which had been provided by the New Zealand Racing Laboratory Services. He then carried out an interview of Mr Justice which was recorded by a colleague who accompanied Mr Carmichael. In the interview which was attached to Mr Carmichael's Affidavit in transcript form Mr Carmichael is recorded as advising Mr Justice that the urine sample taken from "Smoken Up" on 8 April had tested positive for DMSO and he handed him a Certificate of Analysis confirming that positive result. On being questioned Mr Justice said he had heard of DMSO but was adamant that he had never used DMSO on "Smoken Up". He told Mr Carmichael he was aware of what DMSO was used for on race horses and he had some DMSO in a "roll on" in a shed on the property. On further questioning by Mr Carmichael Mr Justice confirmed he was in New Zealand for the entire time of the Inter Dominion Championships except for one day when he returned to Australia for a wedding. He said whilst in New Zealand he stayed at Mr Brosnan's property and was absent from the property on two occasions for social reasons. He said he had no explanation as to why "Smoken Up" had tested positive for DMSO and he had not seen any DMSO on Mr Brosnan's property. When asked whether "Smoken Up" was treated with any substance during the period of the Inter Dominion Championships Mr Justice said the only time the horse got anything other than normal feed was when it was administered Phenylbutozone after the second heat in which it had run, which was administered on the advice of a Vet to help the horse get over the run. Mr Carmichael told Mr Justice he was entitled to have the reserve sample analysed and Mr Justice confirmed he wished that to be done and after some discussion with Mr Carmichael he indicated he wished the reserve sample to be analysed at a laboratory in Melbourne. Subsequently in his evidence Mr Justice confirmed he later contacted Mr Carmichael to indicate he had changed his mind and wished the reserve sample to be analysed at the Racing Science Centre in Queensland. Mr Justice confirmed "Smoken Up" was stabled at Mr Brosnan's stables for the duration of the Inter Dominion Championships and on Finals Day someone was always with the horse. Mr Justice confirmed on the day of the Finals before competing "Smoken Up" received nothing apart from regular feed and drink. In the week leading up to the final, apart from the Phenylbutozone and regular feed and drink he said the horse was given what Mr Justice described as an iron tonic which he said was still sitting on a shelf at Mr Brosnan's property.

4.20 The next witness for the Informant was Mr Cameron George the Chief Stipendiary Steward employed by the Racing Integrity Unit. Mr George said on 21 April 2011 he interviewed Mr Brosnan at his residential and stable address located at Ardmore south Auckland. The interview was conducted in the presence of another Stipendiary Steward Mr Matthew Williamson and was recorded. A number of photographs of Mr Brosnan's stables were taken during the interview and produced as Exhibit 11. Mr George confirmed that whilst present at the stables Mr Brosnan showed him and Mr Williamson where he (Mr Brosnan) had three bottles of DMSO stored. Mr Brosnan told Mr George he was the owner of the DMSO. Mr George took possession of the bottles which were produced as Exhibit "F". In the course of the interview which was produced as Exhibit "E" in transcript form, Mr Brosnan said the only treatment he saw "Smoken Up" receive during its stay at his stables was an iron tonic obtained from America and what he described as normal vitamins which he said were Ranvet products. Mr Brosnan said the iron tonic was given to the horse orally and in small doses of about 2-3 mls daily. He told Mr George he was unsure when he had last used DMSO He said Mr Justice did not bring any DMSO with him and he wasn't aware of DMSO being administered to "Smoken Up". When asked about events following the running of the Final on 8 April he confirmed "Smoken Up" had a mouthful of water and molasses from the bucket which he later said in evidence he had prepared. He said the horse would not have had any more than a mouthful and the swabbing Steward was there and stopped the horse being given any more from the bucket. He said in the whole lead up to the swabbing stages no-one came near the horse apart from Dianne (Ms Giles) and himself. He said they were the only ones that had any contact with the horse.

4.21 On 26 May 2011 Mr George travelled to Mr Justice's stables at Melton in Victoria Australia and there carried out an interview with Mr Justice in the presence of an Australian Stipendiary Steward Mr Hitchcock and Ms Giles. The interview was recorded and produced in transcript form as Exhibit "G". In the interview Mr George discussed with Mr Justice the results of the analysis of the urine samples taken from "Smoken Up" on 25 March and 1 April 2011 which he mistakenly referred to as blood samples, and asked Mr Justice whether he had any reason for "Smoken Up" returning the DMSO levels detected in those samples. Mr Justice responded he could not think of why the horse would have returned those DMSO levels. Mr Justice confirmed "Smoken Up" was treated with Phenylbutozone after the running of the second heat of the Inter Dominion Series and that was the only treatment he received during the series. He said the Phenylbutozone had been given to him by a Vet to administer to "Smoken Up". Mr Justice also confirmed the horse had been given a tonic but could not think of anything that explained the DMSO levels in the urine samples taken on 25 March and 1 April 2011. Mr Justice confirmed that no supplements were given to the horse following the race on the evening of 8 April 2011. Both Mr Justice and Ms Giles who participated in the discussion with Mr George were adamant their treatment of the horse during the Inter Dominion Series was the same as they would have treated him had he been present at their stables in Victoria; they said they tried to replicate everything they would have done with the horse there.

4.22 Mr George was also cross examined at length by Ms Thomas. A significant part of the cross examination related to security arrangements in place at the Inter Dominion Championships compared to those at other race meetings of equivalent significance and Mr George's responsibility for them. We do not need to detail that evidence here because for our purposes the critical events concerning "Smoken Up" were those which occurred between the completion of the Grand Final which the horse won and the taking of the urine sample shortly after and none of the matters traversed in cross examination by Ms Thomas with Mr George had any direct bearing on those events which are otherwise the subject of particular evidence which we have detailed earlier in this Decision. 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. As recorded Mr Carmichael's evidence was given by way of an Affidavit by arrangement between the parties and he was not available for cross examination or clarification on that issue.

4.23 Evidence was also given by Mr Shane Gloury the Chief Executive Officer for Addington Raceway in Christchurch who said his club as the conducting club of the Inter Dominion Championships, with the assistance of the host venue Alexandra Park, organised the security arrangements during the Championships. He outlined what those arrangements were and was questioned at some length about the relative responsibilities of his club and the Racing Integrity Unit in providing the security. He said any security arrangements put in place specifically in relation to the horses competing in the Championships was the responsibility of the Racing Integrity Unit. A number of related issues were also covered with him but we do not need to detail them here as they have no direct bearing on the critical issues we have to decide given our findings on the legal issues outlined at the commencement of this Decision.

4.24 Finally we record the evidence given by Mr Mark Jarrett of the QRSC set out more fully in our Ruling on the admissibility of his evidence. Mr Jarrett analysed the reserve sample of urine taken from "Smoken Up" on the evening of 8 April 2011 on four occasions using the same method as used by Messrs Gardner and Howitt. He said the four results he obtained were 24.9 mg/L, 25.3 mg/L, 25.4 mg/L and 25.0 mg/L giving an average DMSO level of 25.2 mg/L across the four analyses he carried out.

Evidence for Mr Justice:

5.1 The first witness called for Mr Justice was Professor Thomas Tobin who gave evidence by way of a video conference facility from the USA. Professor Tobin is a Veterinarian, a Pharmacologist and a Certified Toxicologist whose professional focus for the last 36 years has been in the area of drug and medication control, therapeutics and toxicology in performance horses. Professor Tobin's evidence was directed to three matters in particular; first what he called a general discussion of DMSO, second comments on the primary analysis undertaken in this case and thirdly what he called the New Zealand Standardbred Regulations. Much of the third aspect of the Professor's evidence was directed to his view that the 15 mg/L threshold beyond which DMSO in urine becomes a Prohibited Substance under the Prohibited Substance Regulations was, as he put it, "…statistically inappropriate and overly rigorous for the regulation of Harness Horse Racing in New Zealand". It is not necessary for us to canvas the reasons why Professor Tobin holds that view. The Regulations clearly provide that DMSO at a mass concentration in excess of 15 mg/L in urine is a Prohibited Substance under the Regulations and we are obliged to give effect to that whatever views are held as to whether the selected threshold level is appropriate or unduly rigorous.

5.2 In the course of his evidence Professor Tobin referred to research carried out in Hong Kong on thoroughbred race horses which was reviewed in a paper presented to the 44th Meeting of the Association of Official Racing Chemists in Cincinnati Ohio in 1991. Professor Tobin said the research showed what he described as the "…very unusual effect of exercise on post-race urinary concentrations of DMSO" that in thoroughbred horses mean post-race urinary concentrations were fivefold lower than the mean pre-race concentrations. The times at which the post-race urine samples were collected was not reported but Professor Tobin said he assumed the samples were collected about 45 minutes post-race. He attributed the post-race drop in DMSO levels to the post-race urinary pH effect which he said was long known and reported in thoroughbred horses. From this he made the point the post-race urinary DMSO sample was highly variable and as such, in his view, a highly flawed forensic sample as compared with a blood sample which he said was a superior forensic sample not subject to the influence of varying pH levels found in urine. He also noted post-race urinary DMSO levels were also variable according to the volume of urine taken and the time post-race at which the urine sample was collected. For those reasons he expressed the view "Smoken Up" had been subjected to what he said was a clearly inferior and quantitatively unsatisfactory forensic testing procedure.

5.3 Addressing the question of whether the same significant reduction in DMSO levels were to be found in post-race urine samples taken from Standardbred (Harness) horses Professor Tobin noted in his written Brief of Evidence research showed clear-cut differences in post-race urinary pH between thoroughbred and harness horses which he said was due to fundamental physiological differences which explained why tests carried out on harness horses in Queensland in 1993 demonstrated different post-race DMSO concentrations between thoroughbred and harness horses. When questioned further about this, in answer to the question whether in a Standardbred horse the DMSO in the urine changed post-race, Professor Tobin said it was not going to change as much post-race in the average horse. Mr Lange then asked the Professor whether the change was still a reduction although not as big and he replied:

"The change is a reduction. Yes"

and then went on to explain the amount of the reduction was dependent on how long after the race the urine sample was taken. Professor Tobin said if the urinary sample was taken at between 30-60 minutes after the race it would be expected the drop in the "urinary pH DMSO" would peak and then go back up. He said the further out the time was (referring to the taking of the urinary sample) the lower the concentration of DMSO in the sample was. Later when asked whether a horse which had a sample taken post-race would have an advantage over a horse "taken pre-race" Professor Tobin replied in the affirmative. The question put to the Professor and his answer are recorded in the Notes of Evidence as follows (CL is a reference to Counsel for the Informant; PT is a reference to Professor Tobin):

"CL And a horse which has a sample taken post-race will have an advantage over a horse taken pre-race. Correct?

PT Correct. Wait. Yes. A horse taken post-race, would tend to be lower than a pre-race. Not as big in the harness horse as in the thoroughbred horse which is why you have a much higher probability of exceeding the threshold on a statistical basis in a harness horse than in a thoroughbred horse…"

5.4 Professor Tobin also noted DMSO was "very rapidly" absorbed and distributed in a horse and a very small amount of the substance would be required to raise the urinary DMSO concentration from 15 mg/L to 25.8 mg/L. He said that meant inadvertent exposure to DMSO between presentation of the horse for a race and collection of the urine sample from it could easily drive the urinary concentration of DMSO in the sample from what he described as forensically negative to forensically positive in a very short period of time. In this regard Professor Tobin referred to the garland of flowers placed around "Smoken Up's" neck following the race which he said might contain DMSO and the drink of water the horse had prior to being swabbed as possible points of inadvertent contamination which he said were numerous, depending on the point at which presentation of the horse for the race occurred and the period that elapsed between then and the taking of the urinary sample. Earlier in his evidence Professor Tobin seems to have taken the time at which "Smoken Up" was presented for the race on the evening of 8 April 2011 as 6:45 pm.

5.5 Professor Tobin was critical of the analysis of the reserve sample taken from "Smoken Up" carried out by the QRSC. He said because the control sample was not tested by the QRSC the analysis was incomplete because it did not replicate the original analysis. In that regard Professor Tobin said the analysis of the reserve sample did not confirm what he called the "primary analytical report" with respect to the "control fluid sample analysis being negative". The Professor expressed the view the control sample should have been split in the same way as the urine sample was at the time the sample was taken thus allowing for independent analysis of the control sample as well as the reserve urine sample.

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.

5.7 The second witness called for Mr Justice was Mr Peter Trothe. Mr Trothe is the owner and director of a company named Oz-Horse which he said was a horse watching company that works solely with horses. Mr Trothe was called to comment on the security arrangements put in place at the Inter Dominion Championships as outlined in documentation which had previously been provided to him recording the observations and functions of other witnesses in relation to those arrangements. Mr Trothe gave extensive evidence of the security measures taken by himself and his company previously at meetings in Australia and by inference, at least, was critical of some aspects of the security arrangements in place at the Inter Dominion Championships at Alexandra Park on the occasion from which the charge against Mr Justice arises. But for the reasons outlined previously in relation to such evidence we do not need to record in detail what Mr Trothe said in his evidence as we have evidence from other witnesses detailing relevant events and occurrences at the critical times.

5.8 Ms Thomas next called Dr Denis Lauren to give evidence. Dr Lauren is an Honorary Research Fellow currently employed part-time at the Crown Research Institute in Hamilton for coaching and mentoring in trace chemistry analytical techniques. He holds a BSc degree with First Class Honours in Chemistry and PhD in Chemistry which was conferred on him in 1971. He retired from fulltime work at the Crown Research Institute in 2007. Dr Lauren's evidence was directed to the quantitative results of the analysis of the urine sample taken from "Smoken Up" on the evening of 8 April 2011 undertaken by the New Zealand Racing Laboratory Service and later the QRSC. Dr Lauren was critical of the accuracy of the results obtained in those analyses for a range of reasons which he outlined in his written Brief of Evidence and which he expanded upon orally when he gave evidence. He said in his view the quantitative result of the analysis carried out by Mr Gardner was highly suspect and was not assured by the analysis of the reserve sample carried out by the QRSC because it was probable both laboratories used similar analytical techniques. We do not think it necessary to embark on a detailed review of the criticisms made by Dr Lauren which we note were in part based on material that had been provided to him by way of disclosure from the New Zealand Racing Laboratory Service.

5.9 At paragraph 32 of his written Brief of Evidence Dr Lauren said based on data which had been supplied to him by way of disclosure, he considered the DMSO level in the sample 11/2688 (the sample taken from "Smoken Up" on the evening of 8 April 2011) was probably higher than the level present in the quality control samples (purported to be 15 mg/L but subject to reservations he expressed over laboratory processes which could affect accuracy) but he thought the levels likely to be within the range of 16 mg/L to 24 mg/L rather than "accurately at 25 mg/L as reported". This matter was pursued with him further when he gave evidence before us. In the course of that evidence Dr Lauren explained the process by which he calculated the range as being between 16 mg/L and 24 mg/L by reference to documents which he described as the raw data relating to sample 11/2688 with the quality control data material also provided. He said applying a mathematical ratio, which he explained, to the raw data he was able to fix the figure of 24 mg/L, the upper figure of his range. When asked to explain how he obtained the lower figure of this range, Dr Lauren said he had looked at the results of the query analyses provided by way of disclosure, which included sample 11/2688, and applying the same mathematical approach to the results of the sample 11/2688 he reached a figure of 16 mg/L. At that point the following exchange took place between the Committee and Dr Lauren:

"BS Yep, I understand how you've done it. Can I just ask you this, sorry Mr Lange. Does that calculation you've carried out, which resulted in the 16 to 24 range, I know you ?? 1: 08: 24: that ??? discussed earlier, taking those figures for the purposes of explanation now, does that accommodate all the criticisms you've made of the processes by which the NZ racing Laboratory and the Queensland laboratory reached the levels or the figures that they did?

DL Simply, no, but it's going a long way down that track to give me an idea of the range where it could be.

BS So, I just need to get this clear. You would be on your calculations more comfortable with a range of 16 to 24 than the 25.2 and the 25.0 reached by the other?

DL Yep.

BS Does that fairly put it?

DL Mmhm. If we assume that 15 is.

SP2 And if we assume it's 13 as you said earlier, it's 14 and 22.

DL Yeah.

SP2 14 being below 15.

DL Yeah"

Dr Lauren's reference to the assumption in relation to the figure 15 referred to evidence he had earlier given in which he explained his view there had been an error in the calculations made by the New Zealand Racing Laboratories Service in relation to the quality controls. Dr Lauren said he calculated the relevant figure was 13 rather than 15 meaning he was more comfortable with a DMSO range of between 14 mg/L to 22 mg/L for sample 11/2688 rather than the 16 mg/L to 24 mg/L as set out in his written Brief of Evidence. We noted however that whilst Dr Beresford in particular, and to a lesser extent Messrs Gardner and Howitt were cross examined quite extensively, the error Dr Lauren claimed he had found in the disclosure materials which he said justified reducing the range he was comfortable with from 16 to 24 mg/L down to 14 to 22 mg/L was not put to any of those witnesses in cross examination and they accordingly had no opportunity to comment on the error Dr Lauren claimed to have found.

5.10 Ms Thomas then called evidence from Mr Robin Wilson and Mr Peter Gadsby. Mr Wilson said he was the part owner of a horse which had competed in the Inter Dominion Championships and he had attended on all three nights of the meeting. Mr Gadsby was a co-owner of "Smoken Up" and he attended the meeting on two evenings, when the second heat and finals were run. Both witnesses gave evidence about the security arrangements they observed in relation to access to the stables area on the occasions they attended the meeting. The evidence of Ms Dianne Willets, who was also called by Ms Thomas, was also directed to security arrangements during the Carnival. Ms Willets was the director of a company known as Confidential Security Services Limited which provided security guards for the Inter Dominion Championship. She said five of the guards provided by her company were located in the stables and a sixth carried out his duties by "roving around". It is not necessary for us to detail further the evidence given by these witnesses as their evidence did not assist us in any way in dealing with the critical issues we were required to determine.

5.11 Ms Thomas also called Mr Richard Brosnan to give evidence. We have already referred to Mr Brosnan's evidence previously in this Decision as it bears on matters at issue and we do not need to repeat that evidence again here.

5.12 The last of the witnesses called by Ms Thomas was Mr Justice. Mr Justice confirmed he was the trainer and driver of "Smoken Up" at the Inter Dominion Championship Pacing Grand Final run at Alexandra Park on the evening of 8 April 2011. He said he had never used DMSO on "Smoken Up" and he was sure of that because he could not stand the smell of DMSO. He said he had not used DMSO on any of his horses for some years and confirmed "Smoken Up" had never previously tested above the threshold for DMSO or any other illegal substance. A substantial part of the evidence given by Mr Justice related to the treatment and feed given to "Smoken Up" whilst it was stabled at Mr Brosnan's stables over the period leading up to the running of the final on the evening of 8 April 2011 and the concerns Mr Justice had about the security arrangements for horses in the stabling area at the racecourse that evening. It is not necessary for us to set out that evidence in detail here because of the effect of R.1004 (4) and our finding as to when the horse was presented for the race as set out earlier in this Decision, beyond observing that at no point leading up to the race did Mr Justice see anyone administer or give anything to the horse which might have elevated its DMSO level nor did he, at any stage, smell what other witnesses have described as the distinctive pungent odour of DMSO in or about the horse which might have suggested something had been given or administered to it which might have elevated its DMSO level. Mr Justice said that prior to the horse running its race it was touched or patted by people who had come into the stable area, inviting the implication that contact with those people may have been responsible for elevating the horse's DMSO level. But that was simply speculation on Mr Justice's part and in any event would provide no answer to the charge given the effect of R.1004 (4) and our finding as to when the horse was presented for the race that evening.

5.13 After the race Mr Justice said he circled around, did an interview on the track and shook hands with officials. He said he walked "Smoken Up" up and down the track a couple of times, "did the photos, rug and thing" and then headed off the track. He said an official then asked him to stay for the presentation at about the same time as someone was putting a rug on the horse and he then handed the horse over to Mr Brosnan. He said at that point he saw Mr Whitcombe and felt the horse was then out of his control because he had handed it over to Mr Brosnan and Mr Whitcombe. Mr Justice said his next contact with "Smoken Up" was when he went to the stalls after the horse had been swabbed.

5.14 At the conclusion of the evidence from Mr Justice Ms Thomas indicated further evidence would be provided by way of an agreed Memorandum from Counsel in relation to a substance she referred to as MSM. No Memorandum has been provided by Counsel in relation to that substance and we have put aside what Ms Thomas, as Counsel, said to us about it.

6. Discussion:

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).

6.3 The only remaining issue in contention is accordingly whether the Informant has proved to the required standard that when "Smoken Up" was presented for the Pacing Grand Final it was not free of the Prohibited Substance DMSO. That in turn raises two subsidiary issues; firstly whether anything occurred in relation to the horse or otherwise, between the time of its presentation for the race and the taking of the urine sample from it at 10:10 pm which would preclude a finding the DMSO level in the horse was beyond the permitted 15 mg/L concentration at the time of presentation, and secondly, whether the results of the analysis of the urine sample taken from "Smoken Up" at that time prove on the balance of probabilities the level of DMSO in or on the horse at the time of presentation exceeded the 15 mg/L threshold. There are in addition some related issues which have been raised by Ms Thomas in her submissions. To the extent we are not able to deal with those issues in our consideration of the two subsidiary issues we shall deal with them later in this Decision.

6.4 As we have recorded earlier the Pacers Grand Final commenced at 9:43 pm on the evening of 8 April 2011. Whatever may have been given or administered to "Smoken Up" prior to the horse lining up and starting to run in that race which may have affected its DMSO level, whether deliberate, inadvertent, due to lack of security or for any other reason, is of no moment for the purpose of determining whether there has been a breach of R.1004 (2) because R.1004 (4) provides that a breach of sub-rule (2) is committed regardless of the circumstances in which the Prohibited Substance came to be present in or on the horse. For that reason much of the evidence we heard relating to possible explanations for "Smoken Up's" elevated DMSO level arising from occurrences before it was presented to run in the Pacing Grand Final on the evening of 8 April 2011 was of only limited assistance.

6.5 There was no evidence anything occurred during the running of the race which may have affected "Smoken Up's" DMSO level. Following the completion of the race the evidence is that the horse's tongue tie was removed by Ms Grieve and that a garland of flowers was placed around the horse's neck before it was taken down to its stall in the stabling area by Mr Brosnan accompanied by Mr Whitcombe. There was a suggestion made during the evidence of Professor Tobin the garland of flowers put around "Smoken Up's" neck might have affected the horse's DMSO level which might also have been affected by Ms Grieve's removal of the tongue tie. However the suggestion was advanced in what seemed to us were speculative terms. We are satisfied from the evidence we heard from Ms Grieve about how she washed her hands in the course of carrying out her duties that evening and the fact she had been unable to detect the distinctively pungent smell of DMSO emanating from the garland of flowers when she dealt with "Smoken Up" that there was no factual basis for the suggestion. That was reinforced by the evidence given by Ms Winter as to the makeup of the garland of flowers. Nothing in her evidence provided any foundation for the contention the garland of flowers contained DMSO which might have been transferred to the horse and affected its DMSO level.

6.6 Both Mr Whitcombe and Mr Brosnan confirmed no-one touched "Smoken Up" as the horse was walked back to its stall in the stabling area. There the harness was removed from the horse and the cart was unhitched. The evidence is that there were a number of people in the vicinity at the time which Mr Brosnan estimated at about 10-15 in number. In his written Brief of Evidence Mr Brosnan said at this time many non-connections were present touching the horse. However as recorded previously in paragraph 4.9 of this Decision when questioned more closely he said the only people to touch the horse were himself, Ms Giles and an unknown person who helped ungear the horse. He said the only person he saw pat the horse was his daughter. Earlier when interviewed by Mr George Mr Brosnan told him that in the whole lead up to the swabbing of "Smoken Up" no-one touched the horse apart from he and Ms Giles. The evidence of Mr Brosnan on this issue is inconsistent and contradictory. The implications of the changes in his account of who touched or patted "Smoken Up" from the time he took control of it after the completion of its race until it was swabbed from what he initially told Mr George to what he said in his written Brief of Evidence are obvious and we think have more to do with a sense of loyalty he may feel towards Mr Justice than to accurately record what occurred. Mr Whitcombe on the other hand was clear that no-one touched "Smoken Up" apart from Mr Brosnan and a young lady whom he was not able to identify from the point where Mr Brosnan took control of the horse after the race until it went into the swab box. On this issue we prefer the evidence of Mr Whitcombe. Mr Brosnan's evidence was that he did not have any DMSO on him that day, he was not aware of Ms Giles having any DMSO and at no stage after the horse "came in" leading up to the time it was taken into the swab box and thereafter, did he detect what he agreed was the distinctive smell of DMSO.

6.7 After "Smoken Up" had been ungeared, washed and towelled, it was offered a drink by Ms Giles from a bucket containing a mixture of water and molasses previously prepared by Mr Brosnan. Mr Whitcombe intervened to stop the horse drinking but was unable to say whether he was able to do so. Mr Brosnan who was present was of the view that "Smoken Up" would have got no more than a mouthful of the mixture in the bucket and agreed the horse's head would have been in the bucket for about a second. He said earlier in the evening "Smoken Up" and two other horses under his charge in the stable area had access to the bucket containing the water and molasses mixture before they raced. When asked how much the horses had to drink he replied they were offered a drink and indicated they would have "what intake they wanted". Mr Brosnan said he had made up the mixture in the bucket from water out of the hose at the wash bay and molasses purchased at a local feed store. He said he did not put any DMSO in the bucket. As recorded previously he said he left the bucket unattended while he went to watch the running of the Pacers Grand Final at a time when he said there could have been people walking through the stables. There was no evidence of any person accessing the bucket during the running of the Pacers Grand Final and the race itself only occupied a little over three minutes so the time the bucket was actually left unattended would appear to have been only a matter of minutes. Mr Brosnan confirmed from the point where the horse was offered the bucket by Ms Giles until it was swabbed it was in his control and no-one approached it during that time.

6.8 On the evidence before us we think it is probable that "Smoken Up" did ingest a small amount of the water and molasses mixture from the bucket offered to him by Ms Giles who, as we have recorded earlier, is Mr Justice's partner. There was accordingly in that respect a failure to comply with the swabbing instructions in the Regulations which requires that a horse not eat or drink without the permission of a Racecourse Inspector, Club Official or Veterinary Surgeon before a urine sample has been obtained. The purpose of that requirement is obvious enough; it is to eliminate the possibility post-race urine or blood samples taken from horses for the purpose of later analysis for Prohibited Substances are compromised by the ingestion by the horse of food or drink between the completion of the race and the sample being taken. The requirement however is not absolute and a horse may be permitted to eat or drink within that period with the permission of the nominated officials. We think it probable such permission would only be given in circumstances where the nominated officials were satisfied what the horse was to be given to eat or drink would not compromise the integrity of the urine or blood sample to be taken for analysis for Prohibited Substances.

6.9 On the evidence we have heard we are satisfied any suggestion that "Smoken Up's" DMSO level prior to being swabbed may have been affected by the small amount of the mixture of water and molasses the horse drank when offered the bucket by Ms Giles is purely speculative. There is no evidence that either water or molasses or a mixture of both contain DMSO, nor is there any evidence DMSO or any other substance which contained DMSO was at any time added to the mixture before "Smoken Up" was offered the bucket by Ms Giles. Nor on the evidence is there any basis to conclude any such materials might have been added to the bucket whilst it was unattended for the short period Mr Brosnan was watching the running of the Pacers Grand Final. To conclude otherwise, as we have indicated, would involve speculation on our part and that is not a proper discharge of our function.

6.10 On all the evidence put before us we are satisfied on the balance of probabilities that from the point where "Smoken Up" was lined up and commenced to run in the Pacing Grand Final up to the time when it was swabbed by Dr Grierson at 10:10 pm on 8 April 2011 nothing occurred in relation to the horse and nothing was administered to it or ingested by it which affected the DMSO level in the urine sample taken from it at that time.

6.11 The swabbing of "Smoken Up" was carried out by Dr Grierson who said it was performed in accordance with the required protocols set out in the Swabbing Instructions contained in the Regulations. We are satisfied from the evidence we heard that was the case. The protocols, as Dr Grierson described them, did not require the control sample to be divided into two parts and Dr Grierson retained the control sample in the one control sample bottle required to be provided in accordance with the protocols after the water had been used to rinse the saucepan used for the collection of the urine sample. Dr Grierson said he was satisfied the rinsing of the saucepan would have removed any residue of DMSO which may have been present from prior urine samples taken that evening and we accept his evidence on that matter. It is true, as we have recorded earlier, Dr Grierson made an error in the swab book when recording the swab number and that he may have made a further error when he recorded himself as the Steward as well as the Veterinary Surgeon. We do not need to decide whether Dr Grierson erred in the latter respect. The entries in the swab book did not affect the taking of the urine sample from "Smoken Up" or compliance with the required protocols for the taking of the sample and Ms Thomas, prior to the evidence given by Professor Tobin, told us there was no issue as to the chain of evidence in relation to the urine sample taken from "Smoken Up" by Dr Grierson to its receipt at the New Zealand Racing Laboratory Services Laboratory on the morning of 11 April 2011. The error in recording the correct number of the swab card in the swab book can only have been a matter of concern if an issue had arisen in relation to the identification of the sample taken from "Smoken Up" as the sample received and analysed by the New Zealand Racing Laboratory Services Laboratory, but that error, and the recording of Dr Grierson as a Steward, if indeed that was an error, in our view are of no moment given the concession made by Ms Thomas. In any event, even if that concession had not been made, we would have been satisfied on the evidence we heard that the sample taken from "Smoken Up" by Dr Grierson was the sample later received and analysed by the New Zealand Racing Laboratory Services Laboratory as outlined in the evidence.

6.12 In her submissions Ms Thomas submitted it was not necessary for breaches of the swabbing instructions to be shown to have led to a compromised sample. She submitted it was enough if the breaches compromised the validity of the swabbing process and pointed to what she claimed were the following breaches which compromised that process in this instance:

(i) the swab card was incorrectly filled out by Dr Grierson in that it recorded the number as 32909/204884 whereas the latter number should have been 2048884;

(ii) the swab card was not signed by a Steward as well as the Veterinary Surgeon;

(iii) "Smoken Up" drank from the bucket containing the mixture of water and molasses prior to the urine sample being taken;

(iv) Dr Grierson was not advised "Smoken Up" had taken a drink from the bucket prior to the urine sample being taken as a result of which he did not take a sample of the contents of the bucket;

(v) there was a failure to ensure the saucepan used to collect the urine sample from "Smoken Up" was properly cleaned.

Ms Thomas' submission was based on a Decision of the Judicial Committee in the case of NZTR v P & D Williams (6 May 2011). In that case Mr and Mrs Williams were the trainers of a horse which had tested positive for a Prohibited Substance following its placing in the principal event on the programme at the Auckland Racing Club's meeting on 30 January 2011. As a result Mr and Mrs Williams were charged with breaches of the NZTR Rules of Racing essentially equivalent to the charge faced by Mr Justice in this case. At the hearing of the charges the Judicial Committee found there had been a number of breaches of the Swabbing Instructions in the course of taking the urine sample from the horse involved in that case. In dealing with the effect of those breaches the Judicial Committee at paragraph 12.9 of its Decision said:

"In the Committee's judgment it is not necessary to demonstrate that breaches of the swabbing instructions have, as a matter of fact, led to a compromised sample. It is sufficient, in the Committee's view, if the breaches have compromised the validity of the swabbing process. There were three (3) significant breaches. These are set out in sub-para 12.6 above. In considering the cumulative effect of those breaches the Committee is left with serious concerns and real doubt that the swabbing procedures followed may have led to a compromised sample. On weighing the evidence we have concluded that the swabbing process may have been materially compromised."

This Committee is not bound by the Decision of the Judicial Committee in NZTR v P & D Williams but adopting the same approach it seems clear the critical part of the Judicial Committee's reasoning was that the cumulative affect of the breaches it found left it with "…serious concerns and real doubt that the swabbing procedures may have led to a compromised sample". In this case we have no such concerns. The errors Ms Thomas claimed were made in completing the swab card were in fact errors in the entry in the swab book and for the reasons we have outlined we are satisfied those errors are of no moment. In addition, as we have indicated, we are satisfied the small amount "Smoken Up" drank of the mixture of water and molasses from the bucket offered to him by Ms Giles did not affect or compromise the urine sample taken from the horse and in the light of that finding the failure by Mr Whitcombe to tell Dr Grierson the horse had taken a drink prior to being swabbed to enable him to get a sample of what the horse had taken becomes also an issue of no moment. Finally as we have indicated, the evidence of Dr Grierson satisfied us that the saucepan used to collect the urine sample from "Smoken Up" was properly and adequately rinsed as required by the Swabbing Instructions before it was used to collect the urine sample from "Smoken Up". None of those matters caused us to have serious concerns or real doubts that the swabbing procedures followed in this case may have led to a compromised urine sample.

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.

6.14 Next Ms Thomas submitted that failures at the New Zealand Racing Laboratories Services Laboratory which she identified as:

(i) a failure to have an accurately quantified quality control;

(ii) a failure to properly document activities in the laboratory;

(iii) a failure to negate the possibility of contamination at the swabbing stage;

(iv) a failure to have an appropriate correlation for the raw data in regard to the quantitative analysis of the urine sample;

(v) using ratio data to give an acceptable correlation.

were all also fatal to the Informant's case. These criticisms were all based on the evidence of Dr Lauren which, as we have observed previously, he accepted were in part accommodated within the range of 16 mg/L to 24 mg/L DMSO in the urine sample taken from "Smoken Up" which he agreed he was "…more comfortable with…", later amended, for the reasons previously outlined, to a range of between 14 mg/L and 22 mg/L. In light of that evidence from Dr Lauren we do not think it necessary to embark upon an item by item consideration of the criticisms by Dr Lauren which were either not accepted by Dr Grierson and his colleagues from the New Zealand Racing Laboratory Services or were not put to them for comment in cross examination by Ms Thomas. We accept what Dr Lauren told us in his evidence that taking account of the various criticisms he made of the aspects of the analytical processes he described, having regard to the fact he had access to the relevant raw data from the New Zealand Racing Laboratory Services Laboratory he was "…more comfortable with a range of 16 – 24 than the 25.2 and the 25.0 reached by the other?".

6.15 In the result on the evidence before us we have the following evidence of the results of the analyses of the urine sample taken from "Smoken Up" on the evening of 8 April 2011, or relating to it:

(a) by Mr Gardner in the New Zealand Racing Laboratory Services Laboratory using a method of analysis which had been the subject of an International Accreditation New Zealand audit and found to require no corrective action or which was the subject of recommendations for accreditation – levels of 25.74 mg/L and 25.90 mg/L of DMSO in the sample, giving an average of 25.8 mg/L;

(b) by Mr Howitt in the New Zealand Racing Laboratory Services Laboratory using the same method of analysis but which, because of an error in one aspect of the calibration points, could not be quantified beyond a finding that the two analyses he carried out both revealed a DMSO level above 25 mg/L.

(c) by Mr Jarrett of the QRSC who analysed the reserve sample four times resulting in the detection of DMSO levels in the reserve sample of 24.9 mg/L, 25.3 mg/L, 25.4 mg/L and 25.00 mg/L. Although the QRSC did not undertake an analysis of the control sample for the reasons outlined previously we do not think that affects the accuracy of the results of the analysis of the reserve sample per se which is the task the QRSC undertook. In any event for the reasons we have given, we are satisfied the control sample was not affected by the presence of DMSO as the tests undertaken by Mr Howitt on 20 April 2011 demonstrated, and having the QRSC undertake further analysis of the control sample would not, in our view, have affected the findings of DMSO levels in the urine sample recorded.

(d) by Dr Lauren, a range of 14 mg/L to 22 mg/L.

These results need to be assessed in light of the evidence given by Professor Tobin to which we have already referred, that the DMSO level in the urine sample taken from a horse post-race will be lower than the horse's pre-race level, and that although this had been clearly demonstrated to be the case with thoroughbred horses the same phenomenon applied in relation to harness horses although, to use the words of Professor Tobin, "Not as big…" for the reasons he outlined. Professor Tobin is highly qualified in his field and we accept the evidence he gave in this regard.

6.16 Approaching the issue on the basis of the standard of proof we are required to apply as explained by the Supreme Court in the case of Z to which we referred earlier, we are satisfied that on the preponderance of probabilities the urine sample taken from "Smoken Up" at 10:10 pm on 8 April 2011, some 24 – 25 minutes after he won the Pacers Grand Final, contained the Prohibited Substance DMSO at a concentration in excess of 15 mg/L. We are also satisfied to the same degree that the horse's DMSO level prior to the race, at the time when it was presented for the race, was higher than the levels detected on the analyses recorded in the previous paragraph and Dr Lauren's range of between 14 to 22 mg/L for the reasons given by Professor Tobin to which we have referred. Ms Thomas in her submissions contended that proof of the DMSO level in "Smoken Up's" post-race urine sample did not provide evidence of the DMSO level when the horse was presented for the race in the absence of a presumption of the kind to be found, for example, in the breath/blood alcohol provisions of the Land Transport Act 1998. We do not agree. In this case the evidence Professor Tobin gave about the drop in DMSO levels in harness horses post-race, which we accept, is a complete answer to the submission and it needs to be noted the Informant is required to prove only that the DMSO level at presentation exceeded 15 mg/L not the precise DMSO level at that time.

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.

7. Result:

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).

7.2 We think it appropriate to make it clear the finding the charge brought against Mr Justice has been proved does not carry with it any finding he personally was responsible for "Smoken Up's" elevated DMSO level when it was presented to race in the Pacers Grand Final on the evening of 8 April 2011. In opening the Informant's case on 23 August 2011 Mr Lange expressly conceded there was no evidence Mr Justice was "complicit", as he put it, in the sense he personally, or any person with his knowledge, was responsible for the horse's elevated DMSO level and there has been no evidence put before us which suggests otherwise.

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.

DATED at Wellington this 31st day of October 2011

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Bruce Squire QC (Chairman)

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Professor Geoffrey Hall