Racing appeals tribunal

Appeal dismissed; penalty varied, 40-week disqualification imposed; appeal deposit forfeited EX TEMPORE DECISION
This is an appeal by Mr Owen Langley against a decision of the stewards of Greyhound Racing NSW. The appeal is one of severity only, Mr Langley having maintained his admission of the breach of the relevant rule. The decision followed a stewards inquiry into analysis reports of the funding of sildenafil in the urine sample taken from Magic Opinion after the greyhound performed poorly, finishing in last place in race 8, the Greyhound Recorder Richmond to Wenty, Heat 2, 5th grade over 717 metres, run at the Richmond meeting on Saturday 4 May 2013. Mr Langley admitted before the stewards a breach of rule 83(2)(a). Relevantly, that rule is in these terms:
R83 Racing greyhound to be free of prohibited substances

The owner, trainer or person in charge of a greyhound – (a) nominated to compete in an Event; shall present the greyhound free of any prohibited substance. The stewards disqualified Mr Langley for a period of twelve months. Mr Langley lodged a stay application, which the Tribunal received together with an appeal against the penalty imposed. The Tribunal has jurisdiction to determine the appeal as the necessary preliminaries have been attended to by Mr Langley within time. The Tribunal has had the benefit of a number of documents tendered to it, including: (a) a complete copy of the transcript of evidence taken at the stewards inquiry, along with the various exhibits; (b) decisions in two interstate matters, one by the Racing Appeals Tribunal Queensland in the appeal of Maund, and one in the appeal of Ken Patterson against the Victorian Greyhound Racing Control Board; (c) the appeal to this Tribunal (constituted by Mr D. B. Armati) of Raymond Lee in which the Respondent was Greyhound Racing New South Wales, together with transcripts of Greyhound Racing NSW stewards inquiries in the matters of Neal Gray and Peter Cohen; and (d) a printout of a warning by the Australian Government Department of Health, Therapeutic Goods Administration in respect of Maxman XI tablets. Mr Langley has filed grounds of appeal as follows: (a) the drug sildenafil should fall into category 5 in the belief it is a therapeutic product rather than a powerful stimulant that are in category 4 of the GRNSW drug table; the "product disclosure statement" contained no evidence of any "drug", and consequently I was unaware nor could I be aware of the levels of sildenafil in the tablet; (c) in the absence of genuine testing for excretion times and amounts in greyhounds, the "estimated" levels of sildenafil are only arbitrary and purely subjective: i.e. trace? low? moderate? high?; (d) that subsequent search of the Govt Department of Health website, I still cannot find caution relating to the use of Maxman "2800 mg"; (e) that my actions were negligent as opposed to malicious in my use; (f) in all my dealings with the Greyhound Racing Authorities I have been open & honest and co-operative & courteous. Greyhound Racing NSW had produced in approximately the past twelve months a penalty table that classified drugs in five categories, which in its determination gives industry participants an understanding of the process involved in determining penalty. Mr Langley, in the stewards inquiry, admitted knowledge of such table. Mr Langley contends that he administered on the day of the race a Maxman tablet, which he believed would assist the dog with cramping. Today, after much discussion, initiated primarily by the Tribunal, he indicated additionally that it was to promote the dog's blood flow to address cramping. Mr Langley concedes that he went to the web to research Maxman but could not find any warnings for Maxman 28 milligrams. However, it is interesting to note that the warning for Maxman XI tablets, which comes up on a search, discloses "undeclared prescription substance sildenafil", despite the product label claim that it is 100 per cent natural and contains no medicine. Mr Langley refuses to provide the source of the tablets. The package, he said, was opened when obtained by him and came with an assurance that its contents were not swabbable. The product information statement supports the contention that Maxman is a "100% All Natural Drug Free Enhancer", extolling its use primarily as a sexual aid to penile erectile dysfunction. The packet cover, apart from being in foreign language, shows a picture of a couple in an intimate pose. In terms of the level of sildenafil detected in the analysed samples, the Tribunal has only two readings: that detected in the matter of Peter Cohen at 65 ng/mL and Mr Langley's at 810 ng/mL. Dr Cawley, in the Cohen inquiry, was unable to draw a conclusion as to whether the reading of 65 ng/mL was high, medium or low; however, the reading of the samples in this matter being some twelve times greater, must be considered in the higher levels. As stated by this Tribunal (constituted by Mr D. B. Armati) in the matter of Lee: The grounds of appeal on a severity matter are not of major importance. They essentially enable the respondent to an appeal to know what case is going to be run and to prepare accordingly. A severity appeal obviously deals with issues, simply expressed, of the weight of penalty that is considered to be appropriate. This is a hearing de novo. It is up to this Tribunal to come to its own determination on the facts as to what penalty is appropriate. Mr Langley places great weight on the issue of categorisation of drugs and having taken evidence from Dr John Newell today, a veterinarian with Greyhound Racing NSW of some considerable experience, and being mindful of the stewards' approach in the matter of Cohen, the issue of categorisation in the mind of this Tribunal is open to conjecture. Notwithstanding that in this appeal and the appeal of Cohen a decision was made by the Stewards to categorise sildenafil as category 4, this Tribunal does not necessarily agree with this classification approach The evidence of both Dr Craig Suann's report (exhibit 22 in the Stewards inquiry) and Dr Newell today confirm that there are no registered veterinary medicines available in Australia known to contain sildenafil. Sildenafil meets the prohibited substance definition in the Rules. Dr Suann states that it "has been reported to be used to treat pulmonary arterial hypertension in humans and dogs ". Dr Newell expresses the opinion that the administration of sildenafil to a greyhound would be rare given as the Tribunal understands his evidence the rarity of arterial hypertension found in greyhounds and further if so diagnosed such dogs would not be fit to race and would have ceased racing. Nevertheless, category 5 also includes products registered for human use in Australia that may have therapeutic benefits. Undoubtedly, sildenafil, i.e. Viagra, is registered in Australia and it would be difficult, the Tribunal believes, to sustain an argument that its use is not therapeutic. Accordingly, the Tribunal is inclined to the view that, by reference to the category table, category 5 is more appropriate. Greyhound Racing NSW might like to revisit or expand upon its terminology used in category 5 if it disagrees with the view expressed by this Tribunal. In considering penalty, the stewards took into account the following: (1) the admission by Mr Langley of the breach; (2) the length of his involvement in the industry, commencing in approximately 1976 and continuing to date, with a 10-year break, i.e., being licensed for approximately 28 years; (3) his age of 61 and the fact that he lives alone; (4) that he is in receipt of a partial disability pension and is not particularly pecunious; (5) that since 2003 his dogs have been swabbed 92 times, with this being the third (6) that he has reduced his involvement substantially and has only a small number of (7) that he did not support the dog by wagering upon it on the relevant day; and, (8) a relatively good record as a trainer. On the negative aspects, consideration was given to the following: (a) that this was Mr Langley's third offence under rule 83(2)(a) within a period of 4½ years; (b) the comparative high level of the drug detected; the use of an imported non-veterinary pharmaceutical product; given Mr Langley's success as a trainer, his profile in the industry; previous comments made to him on prior disqualifications regarding the use of product that is not labelled; refusal to assist Greyhound Racing NSW with the name of the supplier of the Maxman tablets; and administration of the product to the dog on the day of the race. All of the foregoing have been considered by the Tribunal. Mr Langley puts himself forward as being negligent as opposed to malicious in his use of Maxman. However, having been previously dealt with for an unlabelled, unknown substance and having been disqualified on two prior occasions, warning bells should have sounded loud and clear. He used the following language in the evidence he gave to stewards in their inquiry: The guy was telling me that he's selling plenty of it and he's never had a positive, and no-one using it has ever had a positive, returned a positive. It is difficult to accept that its intended use was solely to address a cramping issue given the circumstances of the supplier. A prudent approach to any substance or product intended for use, having regard to Mr Langley's history, would have been to make an inquiry of Greyhound Racing NSW. The rule charged imposes an absolute liability on the trainer. That liability does not come about because there is evidence that he himself was the person who administered the prohibited substance to the dog. As Judge Villeneuve-Smith said in the decision in Patterson: A breach of the rules once can be attributable to human frailty or misadventure. A second time it leads to the arousal of suspicions of the bona fides of the individual. To offend yet again would be the result of a product of nefarious intent or culpably reckless behaviour. In the circumstances, this Tribunal finds that Mr Langley's behaviour was recklessly indifferent in the extreme. The Tribunal has had regard to the more recent decision in the appeal of Lee. It has given consideration to the penalty table published by Greyhound Racing NSW. Whilst it favours, if necessary, a category 5 drug classification, the fact is that Mr Langley continues to re-offend by breaching rule 83(2)(a). Regardless of his explanations, the Tribunal must discharge its primary function—to ensure the integrity of the industry—in a manner that ensures that this trainer as well as other trainers understand the consequences of not complying with the subject rule, and will understand that those who breach this rule will not be participants permanently or for periods of time in the industry. The wagering public and in fact the broader community must have confidence that greyhound racing is run on an even footing in that all dogs competing run purely on their own merit, unaided by any prohibited substance. Accordingly the Tribunal, in according greater culpability and factoring in all the other matters to which the Tribunal has referred, as well as the need for deterrence and consistency with other matters dealt with by the Tribunal, dismisses the appeal but varies the decision of the stewards by imposing in lieu of their 52 weeks disqualification one of 40 weeks, to commence from 26 September 2013. Finally, the Tribunal must under the regulations consider the matter of the appeal deposit. The options open to it are forfeiture or its return in part or in full. I note that there have been no submissions. In any event, the Tribunal forms the view that the appeal deposit is to be forfeited. Ian McRae 10 October 2013


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