Non Raceday Inquiry RIU v G Kenny – decision dated 4 March 2016 – Chair, Mr T Utikere

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decisiondate: 08/03/2016

hearing_title: Non Raceday Inquiry RIU v G Kenny - decision dated 4 March 2016 - Chair, Mr T Utikere

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Decision:

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

AT PALMERSTON NORTH

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND GLORIA KENNY

Licensed Class B Trainer,

of 1785 State Highway 1,

Marton

Respondent

Judicial Committee: Mr Tangi Utikere, Chairman - Mr Paul Williams, Member

Appearances: Mr Simon Irving (for the RIU)

Dr Leo Molloy (representing the Respondent)

Ms Gloria Kenny (as the Respondent)

Ms Tracy Kenny (supporting the Respondent)

Mr Oscar Westerlund (Registrar)

Hearing: Held at Awapuni Racecourse, 4 March 2016

DECISION OF JUDICIAL COMMITTEE

[1] Ms Gloria Kenny appears before this Judicial Committee on the following charge:

Information Number A4174

THAT On the 14th January 2016 Gloria Ellen KENNY, a Class B Licensed Trainer, permitted David James WALKER, a Disqualified Rider under the Rules, to assist in riding the horse ‘Casino’ in trackwork at her training facility located at 1785 State Highway 1, Marton.

[2] The relevant rule reads as follows:

327(1) –“ A Trainer shall not, without the previous written consent of NZTR, employ or otherwise permit to work or to assist in any capacity in connection with the care, control or training of any horse: …

(b) any unlicensed person;

(c) any person who is excluded from entering a Racecourse pursuant to Rules made under section 34 of the Racing Act 2003;…”

[3] The relevant Penalty Provision is contained in Rule 803(1) which states:

“A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules shall be liable to:

(a) be disqualified for a period not exceeding 12 months; and/or

(b) be suspended from holding or obtaining a licence for a period not exceeding 12 months. If a licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $20,000.”

[4] Two teleconferences have been held prior to the hearing of this matter. Two Minutes (Minute No.1 dated 9 February 2016, Minute No.2 dated 16 February 2016) were issued by the Chairman of this Judicial Committee as a result of the teleconferences. During the teleconference held on 16 February 2016, Dr Molloy confirmed that the rule was understood and that the Respondent admitted the charge. Directions were subsequently issued, setting this matter down for a Penalty Submissions Hearing at Awapuni Racecourse on Friday 4 March 2016.

[5] Mr Irving tabled a signed authority from the Racing Integrity Unit (RIU) to proceed with the charge against Ms Kenny. Copies of the Information, the appropriate notices to the various parties, and the appointment of the Judicial Committee have also been received.

FACTS

[6] At the hearing, the Committee was provided with a Summary of Facts by Mr Irving outlining the circumstances from which the charge arose. The Summary of Facts stated:

The respondent Gloria Kenny is a licensed Class B trainer under the Rules of New Zealand Thoroughbred Racing (NZTR).

On Thursday 14th January 2016 Racing Integrity Unit (RIU) investigator Simon Irving and RIU Manager Integrity Assurance Neil Grimstone went to the property of the respondent at 1785 State Highway 1, Marton. The property includes horse stables and a training track.

At 7.45am investigators observed both Tracy Kenny (the respondent’s daughter) and David James Walker riding two horses, walking from the training track toward the stable complex.

David James Walker is a Disqualified Person under the Rules of NZTR. He was disqualified for five and a half years commencing on the 25th September 2014 for serious racing offences.

Walker was riding the horse ‘CASINO’ and Tracy Kenny was riding the horse ‘WILLY B’, both trained by Gloria Kenny.

Upon seeing the investigators approximately 20 metres ahead of him, Walker turned his horse around and proceeded to trot back the way he had come, opening two gates as he did so and galloped further away. He was called upon to stop. The horse was located a short time later untethered in a paddock but Walker did not return.

Tracy Kenny was spoken to and identified Walker as the person riding with her. In explanation she stated that she asked him if he’d help ride CASINO and he’d been there for the last four days to help work him.

A short time later Gloria Kenny returned to her property in a horse truck. She was informed of what had occurred and in explanation eventually admitted that Walker had ridden some of her horses in track-work and that she knew Walker was disqualified. She also stated that she thought the disqualification only applied to racecourses and not a “home track.”

The respondent has been involved in the thoroughbred racing industry for many years.

DECISION

[7] As noted in the Minute dated 16 February 2016, the charge is admitted and the Committee find the charge proved.

INFORMANT’S PENALTY SUBMISSIONS

[8] For the RIU, Mr Irving submitted the following written submissions:

The respondent Gloria Ellen Kenny is a Class B licenced Trainer under the New Zealand Thoroughbred Rules of Racing (NZTR). She has been involved in the racing industry for many years.

The charge against Mrs Kenny - a breach of Rule 327(1) - has been admitted in that on the 14th January 2016 she permitted Disqualified Rider David Walker to assist riding track-work at her training facility.

The circumstances are detailed in the attached Summary of Facts which are agreed.

The penalties which may be imposed are detailed in the attached Charge Rule and Penalty Provisions Document.

PENALTY SUBMISSIONS

It is expected that license holders will at all times act professionally, properly and honestly. Good character is one of the conditions upon which a licence is granted. Disregard for a sanctioned penalty must be viewed seriously and any penalty must act as a deterrent to others.

It is the Informant’s position that, having regard to all factors, a fine of $500 - $600 is appropriate.

In support of penalty I believe there is no precedent either here or in Australia for a breach of this rule, although there are similar charges pending in both countries.

The RIU are seeking no costs.

MITIGATING FACTORS

The respondent claimed that she believed that a disqualification only applied to a racecourse and not a “home track.”

The respondent has admitted the breach and therefore negated the resources required for a non raceday hearing.

The respondent has no previous serious breaches of the NZTR Rules.

AGGRAVATING FACTORS

The respondent has been involved in the racing industry for a long period of time. According to NZTR records she has been a Class B trainer in her own right since 2012.

There is an onus on NZTR licence holders to know and abide by the Rules of Racing, similarly to the holder of a drivers licence knowing the road rules. A condition of issuing a licence (and licence renewals) is that the applicant must appraise themselves of the Rules. The application is signed acknowledging the following:

“I have obtained a copy, and informed myself, of the NZTR Rules of Racing and it is my obligation as a holder of a Class A, B, or C trainer’s licence to update myself in relation to NZTR’s policies and any rule changes and to abide by those policies and Rules of Racing.”

Ignorance of the Rules is no excuse.

Initially the respondent only admitted that Walker had been riding her horses on the previous four days and even when prompted she did not admit he had ridden her most recent starter (‘Scoota King’) in December 2015. Only when questioned further did she admit Walker had ridden that horse in track-work while he was disqualified.

It was apparent from the reaction of both David Walker and Tracy Kenny to RIU investigators that they were both fully aware of the implications of the disqualification and it can therefore be inferred from their behaviour and the respondent’s responses to questions during interview, that she too was aware that Walker should not be riding for her.

Following the investigation it became apparent that many industry participants were aware that Walker had continued to ride track-work for the respondent after he was disqualified. This sends the wrong message to the industry - that JCA imposed sanctions only apply to the ‘public arena’ and that disqualified persons can continue to work within the industry.

CONCLUSION

Given there is no precedent for this charge, given the mitigating and aggravating factors as listed and the overall circumstances considered in this case, I believe a $500 - $600 fine is appropriate.

[9] In addition to the written submission, Mr Irving made the following verbal submissions to the Committee:

[10] The Racing Investigators had inferred that as a result of the reaction of licence holders at the Kenny property when the Investigators arrived, they must have known that Mr Walker was not permitted to ride horses, even on her property. This influenced the decision to charge Ms Kenny with a breach of Rule 327(1).

[11] He had been unable to locate any previous breaches of this rule and as such had looked at previous misconduct and behavioural matters, where the fines determined by Judicial Committees had been in the $500-$600 vicinity. He submitted that a period of suspension could be considered but this had not been included in his written submissions, nor had it been canvassed with Dr Molloy.

[12] In response to a question from the Committee, Mr Irving indicated that even though he had referred to other penalties for misconduct, he still considered the charge being laid under Rule 327(1) was more appropriate than Rule 340. The reason he offered was that the Misconduct (Rule 340) is a broad rule, and Rule 327(1) provided for a specific breach, so was more applicable rather than defaulting to the general charge of misconduct.

[13] He confirmed that as the hearing was being held on a raceday, the RIU were not seeking any order for costs.

Respondent’s Penalty Submissions

[14] The Respondent’s Lay Advocate Dr Molloy submitted the following written submissions:

The respondent has admitted a charge under rule 327(1) in that she allowed David Walker, a disqualified person, to assist with the training of a registered racehorse.

The circumstances as described in the Summary of Facts are not generally in dispute. Nor is it in dispute that Walker had, along with his wife, been gainfully employed for some time on the Kenny property as a farmhand in compliance with the rules of racing.

The penalties are clear under Rule 801(2), that being a serious racing offense, although this is clearly something of an extreme use of this particular rule and offenses of this nature and magnitude clearly should fall within a lesser alternate rule, possibly Rule 340, that being for misconduct. It is regrettable that to our knowledge no such latitude to charge Kenny under 340 exists.

The respondent is a person of very good character, a sixty nine year old widow she has been involved in the racing industry as a significant and useful contributor for a very long period and has largely been a model licensee.

It is vigorously disputed that her association with the subject Walker constitutes blatant disregard for the rules of racing, but rather is a reflection of a morphing of the rules subsequent to the formation of the RIU, and the respondents somewhat dated interpretation of rules that preceded the RIU, rules that have been historically interpreted in a drastically different manner, but the interpretation by the respondent in this instance is in a manner largely consistent with that of the majority of the industry.

It is our consideration that in the absence of a more applicable and relevant rule we will assume that this transgression falls at the lower end of the lower end of the scale and latitude of rule 802, and the application thereof with regard to penalty, and given that this charge is without precedent in NZ we would suggest a modest fine of the magnitude of say $100-$200 is appropriate, in conjunction with a written warning (courtesy of the RIU) being placed on the respondent’s record.

This is a modest fine but the industry has arguably been poorly served in this instance and whilst it's to be recorded that a transgression has occurred and been admitted, the rules and enforcement thereof should surely be clarified through a comprehensive licensee based re-education initiative, possibly through the Trainers Association in conjunction with the RIU and NZTR.

We obviously acknowledge and support the RIU in their submission that there be no costs awarded today.

Mitigating factors. The application of the rules with regard to disqualified persons is complex and no licensee can reasonably be expected to understand how the rules are to be applied given the extraordinary state of flux the RIU is itself in on the matter. Some examples of such flux follow. Within the harness code the Lynch and Screen employee/employer relationship has been subject to verbal advice of breaches before any rigid rule enforcement, such verbal advice is entirely appropriate and is something we'd encourage rather than the dawn raid and what might be seen by the respondent as intimidatory tactics adopted in this instance.

Within the thoroughbred code Jason Waddell has become a complex subject of interest. He is said to have been given consent by NZTR (in breach of rule 1105(a)) to work for both Windsor Park Stud, in breach of rule 1104 (1)(b) and the licensed track rider and pre-trainer Sam Beatson, in breach of rule 327(1)(c)(d).

To compound matters the NZTR preferred legal adviser, Mike Colson of Bell Gully, has reportedly advised (incorrectly in our opinion) that Waddell can work in breach rules 1105(a), 1104(1)(b) & 327(1)(c)(d).

The RIU has offered as an explanation that Waddell is granted consent to breach the above rules because he is seeking a stay of decision under appeal, however that's a clear and irrefutable breach of rule 1108.

The respondent has of course cut her teeth under the pre RIU application of the rules whereby disqualified persons were precluded from riding on public tracks but allowed to serve their disqualification and maintain fitness by exercising horses on private property.

Persons afforded this privilege include, but are not limited to, Opie Bosson, Troy Harris, Leith Innes and Ben Foote, the former three at the McKee establishment, the latter with Ralph Manning. Such concessions were public knowledge and arrangements were widely broadcast within the racing community, and this is the background within which the respondent allowed Walker to progress from assisting on the respondent’s farm as a labourer to riding the retired racehorse Casino on the day in question. The respondent has been cooperative, entering a guilty plea before discovery was completed, and has expressed remorse and considerable regret that she did not have a clear understanding of the relevant rules.

The respondent’s daughter, whose charges have been withdrawn, has given a contrite written apology to the RIU. It is the view of the respondent that her guilty plea was designed to facilitate the withdrawal of similar charges against her daughter, a forty five year old solo mother who works for the farm and is the sole work rider, and thus an essential part of the training regime.

This is not an exercise in exculpation but rather an explanation as to why a guilty plea was entered, particularly given the unfortunate threats of the RIU members of staff, one of whom had warned the somewhat naïve and impressionable respondent of fines up to and including a figure of $50,000.

Whilst we acknowledge such tactics may well have a place on the streets of South Auckland it goes without saying that the described tactics do nothing to instil confidence and reciprocal support in licensees in what is a far from black and white racing environment.

By the RIU’s own admission this exercise was driven by a desire to prove David Walker was transgressing, but the Kenny’s became snared as collateral damage, and allegedly they were only in fact charged because they were not immediately cooperative with the investigators.

It is noted that the recent case, clearly a far more serious case with international ramifications, against the handicapper Mr Denis Quirke states that Quirke lied to the investigators but escaped charges for providing false and misleading evidence.

It is curious then that these charges against the Kenny’s have been progressed for what apparently amounts to nothing more than unwise and regrettable non-cooperation with the RIU investigators in the first instance.

The rules of racing clearly say a list of disqualified persons will be published. We cannot identify any such list on the NZTR site, in the Thoroughbred Monthly, or on the RIU or JCA site.

We do acknowledge though that it was understood clearly that Walker had been handed down a seriously penalty, but semantics with regard to disqualification and suspension precluded a clear and unequivocal understanding of what Walker was or wasn't allowed to do on the subject’s farm.

In summary then; Walker was the primary subject of interest, the respondent was caught up in the operation and in fact would have escaped any charges had she not unwisely endeavoured to protect Walker out of misplaced loyalty. Semantics with regard to what is a disqualification and what is a suspension created a degree of uncertainty and misinterpretation.

The RIU is sending mixed messages to the industry with regard to what is acceptable, tolerable, and or allowed for disqualified persons and the role they may play within the wider industry. This applies in particular to the jockey Waddell but additionally to the harness employee Lynch.

The rules are lacking in flexibility and are quite grey in their definition and interpretation. The respondent has been a valuable and model licensee for a very long period of time. A guilty plea was entered expediently at the first opportunity.

Expensive associated costs have been diminished because the respondent has accepted her fate and been cooperative in the extreme.

The RIU staff may have fallen short here when a simple and reasonable verbal warning would have had the desired effect rather than what might be described as strong arm tactics.

Conclusion and recommendations. This is a very unusual case with complex mitigating circumstances largely in the respondent’s favour. On that basis we suggest a minimal fine of less than $200, in conjunction with a stern warning, would achieve the required result in this instance, and in doing so we can take this opportunity to “build a bridge” and bring some confidence back to the industry licensees in their relationship with the RIU.

The industry would welcome such compassion for a sixty nine year old widow who for her entire racing life has worked tirelessly for the common good, for little obvious reward.

We thank the JCA for their consideration and understanding.

[15] In addition to the written submission, Dr Molloy made the following verbal submissions to the Committee:

[16] He re-emphasised his preference for this matter to be dealt with via a lesser charge of Misconduct under Rule 340, rather than the breach of Rule 327(1) which he believed to be a very serious charge.

[17] He also submitted that the Georgetti/Kenny family have a history woven into racing in the Manawatu/Rangitikei region. Recent research had identified that David Walker’s father Jim Walker had ridden for the Georgetti/Kenny family in 1984 and since then they had developed a long-term relationship with the Walker family.

[18] Dr Molloy submitted that as a result the Kennys were entitled to be loyal to David Walker, and that it was important to look at the bigger picture. He believed that the suggestion that the Kennys were unco-operative with the initial Racing Investigators was the reason why Ms Kenny had been charged under this rule and did not believe the behaviour warranted such a charge under Rule 327(1).

[19] He noted that the degree of co-operation shown by the Kennys was extraordinary. He believed there to be resistance to the presence of the RIU on some other farms in the area, but that the Kennys had never contested the RIU’s right to be on their farm. He pointed to the ‘grey area’ of application of the rules and that there seemed to be different levels of tolerance that should be explored. He submitted that the consistent application of the rules was confusing when so many variables existed. He also re-emphasised that there is an obligation for the list of Disqualified Persons to be published.

[20] He stated that he concurred mostly with Mr Irving’s submissions and acknowledged that there was no precedent and submitted that a token penalty in the amount of $200 would be appropriate. Such a penalty would acknowledge the trauma and stress that Ms Kenny had been through as a result of this charge. He had no specific comment on the workability of a period of suspension as it had only been raised by Mr Irving in his oral submissions during the hearing.

[21] In response to Dr Molloy’s written submissions, Mr Irving objected to the use of the term “Dawn Raid”, identifying that Racing Investigators arrived at the property at 7.45am. The Committee noted that whilst there was a degree of emotive language in Dr Molloy’s written submissions, we understood the key points that he was attempting to make.

[22] Mr Irving also confirmed that he was not suggesting the lesser charge be laid under Rule 340 as an alternative, but was rather exploring the possibility of a term of suspension instead of a monetary penalty, but conceded this may cause some issues which would mean it would not be entirely workable.

Reasons for Penalty

[23] The Committee considered all of the submissions placed before it, and in doing so, we note our thanks to both parties for the pre-circulation of their written submissions as to penalty.

[24] Gloria Kenny has admitted a breach of Rule 327(1). She is a 69 year old widower who has held a Class B Trainers Licence for many years, and currently resides in Marton.

[25] The Summary of Facts outline the circumstances and elements that led to this charge being laid. There has been a request today from Dr Molloy for the lesser charge of Misconduct under Rule 340 to be laid against Ms Kenny, citing the cases of Molloy and Morton as a precedent for doing so. Mr Irving has not proposed that the Committee consider the lesser charge as the specific actions that Ms Kenny had undertaken is covered by Rule 327(1), rather than the general Misconduct rule. Accordingly, we do not exercise any discretion in the amendment of the charge currently before us.

[26] The charge alleging a breach of Rule 327(1) has been properly filed. There has been some discussion between parties around the possibility of a suspension being considered, and we note that this penalty option remains available to us, if we consider it desirable, under the Penalty Provisions for a breach of this rule. This Committee also accepts that the offence currently before us is not a Serious Racing Offence as defined by Rule 801, and therefore the penalty provisions of Rule 801(2) do not apply.

[27] For the RIU, Mr Irving has identified a number of factors to be applied in mitigation. With regard to aggravating factors, he assists the Committee by indicating that all licence holders are made aware of the Rules of Racing and the requirement to understand these rules as part of the licensing and re-licensing process.

[28] The suggestion that Ms Kenny may have been unco-operative with the RIU Investigators has no bearing on our penalty consideration. Ms Kenny has, in our view, been co-operative since this matter was referred to this Judicial Committee for determination. She had taken the time to consult with Dr Molloy as her lay advocate, which is an opportunity that she is entitled to, in line with the Principles of Natural Justice. In determining penalty, we apply her co-operation in her favour.

[29] Mr David Walker is a disqualified person, and that is a fact. The notification within the industry as to his status is a process that NZTR bears responsibility for. Whilst his name may, or may not, appear on a published list, we also note that while Mr Walker may reside locally, the fact that he is a disqualified person has been well publicised on a regional and national basis. Dr Molloy has emphasised the close links between the Georgetti and Walker families, therefore the Committee believes it is not possible that Mr Walker's disqualified status was unknown to Ms Kenny.

[30] The reality is that Ms Kenny has admitted the breach; therefore the sole responsibility of this Committee is to determine, in light of that admittance, what is the appropriate penalty in these circumstances alongside any costs consideration.

[31] The cases and examples that Dr Molloy has cited are of limited assistance to us. The reason for adopting that view is that they individually, and collectively, do not provide meaningful nor relevant comparisons as to a possible penalty. Instead, they infer that there are process and interpretation issues that relate to the processes and practices within the racing industry. They are issues that are outside of the scope available to this Committee for the purposes of determining an appropriate penalty.

[32] However, where there is some limited assistance in these examples, is where they attempt to support the suggestion that there was an awareness of the approaches that had been taken on the part of Ms Kenny that led her to believe that it was acceptable for Mr Walker to ride horses on her property. In Dr Molloy's written submissions, she now accepts that she was wrong in this belief and has expressed her regret as a result.

[33] The Committee notes that Rule 1103(1) requires a list of Disqualified persons to be kept, but there is discretion on the part of NZTR as to whether that list is published or not. No such discretion applies for the notification of Appeals Tribunal decisions, for which this is relevant as Mr Walker’s current period of Disqualification arises from a decision of the Appeals Tribunal. Rule 1007(7) required the notification of such a decision in the Thoroughbred Racing Monthly.

[34] While it appears that the official notification of a disqualified person, and the process thereof in relation to Mr Walker, has not been followed by NZTR in accordance with Rule 1007(7), that cannot be used as a justification for the Respondent not being aware that Mr Walker was a disqualified person within the context of this case.

[35] Dr Molloy has provided a character reference for Ms Kenny. It is from Mr Henderson, a lawyer from Evans Henderson Woodbridge in Marton. It attests to her integrity, honesty and good character. Ms Kenny's conduct as part of the hearing process before this Committee is in li

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