Appeals On Disqualification Upheld By Judges

Press, Volume CI, Issue 29754, 22 February 1962, Page 4

Appeals On Disqualification Upheld By Judges

The appeals by W. E. Lowe and I. M. Scoon against terms of three years’ disqualification imposed on them in December have been upheld, but Lowe has been ordered to pay £5OO, less his appeal deposit of £2O, towards the costs and expenses of the New Zealand Trotting Conference. Scoon’s appeal deposit of £2O was refunded.

The appeals by Lowe, of Ashburton, fanner and owner-trainer, and Scoon, of Ashburton, licensed horseman, were against the decision given by the stipendiary stewards of the New Zealand Metropolitan Trotting Club at Christchurch on December 19. 1961. The decisions were:— The horse Urrall, owned by Lowe, was under Rule 70 (1) h (1) disqualified for the Empire Handicap run on the first day of the New Zealand Metropolitan Trotting Club’s Cup meeting at Addington: and Lowe and Scoon were, under Rule 70 (3> disqualified for three vears from Ds-ce-ber IS. 1961

The disqualification of Lowe and Scoon resulted a onsltfve swab returned be Urrall after he had wen the Emoire Handicap at Add’neton on Tuesday November 7 Lowe is the owner-trainer of Urrall and Scoon was in charge of the horse on the day of the races Both Lowe and Scoon were found guilty of failing to take proper precautions to prevent the administration of a drug to the horse. The Judges appointed by the New Zealand Trotting Conference who heard the anneal this week were Messrs R P. Thompson (chairman), H. T Fuller, of Christchurch, and G. R Kingston, of Timaru Appeal Decision

Their decision reads:— “At the outset Messrs R A Young and PGS Penlinrton. counael for both appellant*. on behalf of their clients, arreed that rvloesine is a drug eanable of affectinc the «o»ed s’amfna couraee or coedne* of a horse and therefore fall. wi*hin th* scope nf Ruty to h <i>

"However -hey strenuou'lv a-«">ed that the evidence fell short of establishing that the sample of saliva which returned a negative test and that of urine which returned a positive were in fact those which had been subm’tted for analysis to the Chemical Service Laboratory at Wellington in reelect of Urrall.

“Mr Young urged that, these proceedings being by way of a rehearing, the onus

of proof was upon the conference to establish beyond reasonable doubt that xylocaine had been administered to the horse. On the other hand, Mr B. McClelland counsel for the conference, submitted that the proceedings. being an appeal, not a retrial, by way of rehearing, the onus was upon the appellants to show that the decision was wrong. ‘‘Asaiming, without deciding, that Mr Young is correct in his contention, we are satisfied beyond reasonable doubt that Urrall, at the relevant time, had had xylocaine administered to it We could not accept the appellants’ argument that the conference had failed to prove that the samples under consideration were those of a horse other than Urrall

'The procedures here adopted for the swabbing at the course, for the dispatch of the appropriate canister to the laboratory, and for the analysis of those samples, were, in our views, as efficient and careful as could in all the circumstances be reasonably expected “Not Impressed” “Furthermore, although we closely examined it. we were not impressed by the evidence elicited both by crossexamination of the conference witnesses ar.d from the evidence of witnesses called for the appellants, that clinically the horse showed no signs of the admmistration of a drug, either depressant or stimulant, or both, and therefore could not have been drugged “It seems to us that the very essence of a successful doping of a racehorse is that its effects should not be discernible to the office holders of the club the officiate in charge of swabbing operations and the members of the public who witness the race in which it is engaged "It follows, therefore, that the appeal in respect of the disqualification of Urrall is dismissed, the disqualification is affirmed and the placings Happy Hunting 1, Dark Wonder 2, King Anjou 3. Southern Cross 4, will stand. “Having found that at the relevant time Urrall had had xylocaine administered we must consider the appeals against the disqualifications

under rule 70 (3). “On this issue we accept Mr Young’s submission that although the onus rests upon the appellants to establish that they took all reasonable precautions to prevent the administration of a drug, that burden is not as great as weighed upon the conference in the appeal against the first objection. To this proposition Mr McClelland raises no opposition. "After we had closely considered the evidence called by the appellants we ultimately concluded that on the balance of probabilities they had just managed to prove that they had taken all reasonable precautions. Accordingly, the appeal of each of them against his disqualification should succeed. We are bound to say that had the required standard of proof been higher we would not have hesitated to affirm in whole the decision appealed from.

"In accordance with Rule 373 (2) the deposit of £2O which Mr Scoon has paid must be refunded. No order as to costs is made in his favour. "Mr Lowe failed in the first appeal, the consideration of which occupied this tribunal foe much the greater part of the hearing. By the skin of his teeth he succeeded on the second appeal. We think it proper that he be ordered to pay £5OO towards the costs and expenses of the conference and we therefore determine accordingly. The deposit of £2O shall be applied towards payment of such costs, leaving a balance of £4BO due.