Non Raceday Inquiry – HRNZ v TJ Cowan – Decision 18 July 2011

hearingid: 0a65ef1b65b581a04640938ca99cd72b

informantnumber: 69180

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decisiondate: 21/07/2011

hearing_title: Non Raceday Inquiry - HRNZ v TJ Cowan - Decision 18 July 2011

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

Non Raceday Inquiry
HRNZ v TJ COWAN
Decision 18th July 2011

Rules:  Rule 303(2) and 1003(1)

Information Number:  69180

BEFORE A JUDICIAL COMMITTEE HELD AT CAMBRIDGE

IN THE MATTER: of the NZ Rules of Harness Racing

BETWEEN: Thomas Rodney CARMICHAEL – Racing Investigator

Informant

AND Thomas James COWAN – Licensed Open Horseman

Defendant

JUDICAL COMMITTEE:  Mr BJ Scott (Chairman) and Mr AL Godsalve (Committee)

VENUE: Cambridge Raceway, Cambridge

PRESENT: Mr TR Carmichael (Informant), Mr TJ Cowan (Defendant), Mr R Lawson (Lay Advocate Representing Mr Cowan)

PLEA: Admitted

DATE OF HEARING: 30 June 2011

DATE OF ORAL DECISION: 30 June 2011

EVIDENCE:
1) An Information was lodged by Racing Investigator Mr TR Carmichael of behalf of Harness Racing New Zealand against Licensed open Horseman Mr TJ Cowan alleging that Mr Cowan committed a breach of Rule 303(2) of the NZ Rules of Harness Racing in that on the 9th day of January 2011 at Parawai Race Course during the course of a race meeting conducted by the Thames Harness Racing Club Mr Cowan was involved in a physical altercation with a Security Guard for the time being officially on duty in the Sponsor’s area and that he did thereby misconduct himself and he was therefore liable to the penalty or penalties that may be imposed Pursuant to Rule 1003(1) of the said Rules.

Mr Cowan was present at the hearing and was represented by Mr RJ Lawson (Lay Advocate). Mr Cowan advised this Committee that he admitted the breach of the Rule.

2) Rule 303(2) provides:

“No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, Stablehand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.”

3) Rule 1003(1) provides:

“A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4) 1001 or 1004, hereof) shall be liable to the following penalties;
(a) fine not exceeding $5,000.00; and/or

(b) suspension from holding or obtaining a license for a period not exceeding 12 months; and/or

(c) disqualification for a period not exceeding 12 months.

In addition to or in substitution of any penalty imposed pursuant to sub-rule (1) hereof, any horse connected with the breach of the Rule may be scratched or disqualified from any race and/or disqualified for a period not exceeding 12 months.”

4) At the start of the hearing Mr Carmichael presented to the Committee a copy of the authority from the Operations Manager of the Racing Integrity Unit to proceed with the charge against Mr Cowan

5) Mr Carmichael than presented an agreed Summary of Facts the relevant points of which are as follows:

(i) Mr Cowan is Licensed Open Horseman who has been involved in the Harness Racing Industry since about 1986 and he is a Senior Staff member in a large training establishment.

(ii) Mr Cowan was charged with a breach of Rule 303(2) in that he misconducted himself during the course of a racing meeting at Thames on the 9th January 2011.

(iii) On the 9th January 2011 Mr Cowan attended the annual Thames Harness Racing’s Club Meeting at Parawai Racecourse. He was not working on that day and attended the meeting socially with a number of friends.

(iv) Mr Cowan and his friends occupied a table in the Public Area immediately adjacent to an enclosed area for Sponsors. Entry to the Sponsor’s area was by way of an identifiable wrist band and via a single gate. Sponsors and their bona fide guests were supplied free food and drink within the fenced Sponsor’s Area.

(v) At about Race 10 on the day Mr Cowan entered the Sponsor’s area and was in the process of obtaining a drink from the bar when he was approached by a Security Guard and asked for his identifying wrist band as there had been a complaint about him being in that area.

(vi) Mr Cowan was asked to leave the Sponsor’s area and was followed out by the Security Guard. As they neared the exit gate a scuffle broke out between the pair. Mr Carmichael advised that there were conflicting reports on who did what at that stage but both Mr Cowan and the Security Guard ended up in a struggle on the ground near the gate into the Sponsor’s area. During the course of the struggle Mr Cowan had a finger bitten and the Security Guard had scratches about his eye. Two other Security Guards arrived and prevented any continuation of the altercation and Mr Cowan left the course a short time later.

(vii) Mr Cowan was subsequently interviewed and he denied that he was responsible for starting the scuffle. He said that he had been given two wrist bands by a couple who were leaving the Sponsor’s area at about the middle of the day and he said that he had these in his pocket at the time that he was approached by the Security Guard but denied that he was asked for them.

(viii) Mr Cowan did not produce the wrist bands at any time subsequent to the incident, firstly when the Head of the Security Firm intervened or secondly when he was spoken to on the day by a Stipendiary Steward. Extensive enquiries failed to identify any person who gave wrist bands to Mr Cowan.

(ix) Mr Carmichael in his statement advised that the reality of the situation was that Mr Cowan by his own admission had entered the Sponsor’s area on at least two occasions when he had obtained free food and drink when he was not entitled to do so. If Mr Cowan had the wrist bands then surely he would have produced them at the time and thus avoided what was potentially an ugly scene involving a license holder and an Official employed by the Club.

6) In response Mr Lawson on behalf of Mr Cowan submitted the following:

(i) On Sunday 9th January 2011 Mr Cowan was off duty from his position as stable foreman for a major Harness Racing Stable and decided on a relaxing casual day with friends at the Thames Harness Races. He was not working on this day and as such was in public area of the course with a picnic hamper enjoying the day. He was located adjacent to the Sponsor’s area.

(ii) To obtain access to this area you required to have a gate pass (wrist band). Mr Cowan’s party had their own refreshments and food.

(iii) Later in the day one of the persons entitled to be in the Sponsor’s area decided to leave and they saw Mr Cowan and gave him their gate pass to get into the Sponsor’s area.

(iv) Mr Cowan mistakenly did not put it on his wrist but rather put it in his pocket.

(v) Mr Cowan therefore felt entitled to enter the Sponsor’s area. He did so from approximately Race 8 onwards.

(vi) At approximately Race 10 he was approached by a Security Guard asking Mr Cowan for his gate pass entitling him to be there.

(vii) Mr Cowan could not find his pass immediately and this was the initiation of the altercation.

(viii) Mr Lawson submitted that the Security Guard was forceful and aggressive in his inquiries and Mr Cowan took offence and he resisted the approach by the Security Guard and this resulted in a physical altercation.

(ix) In Mr Cowan’s opinion the Security Guard’s interpersonal techniques were sadly lacking however Mr Cowan acknowledged that for this part he should either have produced the gate pass or left of his own accord.

(x) The resulting scuffle was very quickly ended.

(xi) Mr Lawson submitted that as a misconduct charge had arisen out of this incident then the correct procedure from Mr Cowan was to plead guilty to the charge. Mr Lawson further submitted that the whole affair could have been avoided if Mr Cowan had displayed his gate pass immediately or had left the area immediately or if the Security Guard had better communications skills and training in how to avoid conflict rather than create it.

Mr Lawson pointed out that no assault charges had been preferred against Mr Cowan arising out of the incident and he did advise this Committee that if any charges had have been laid then they would haven been vigorously defended.

(xii) Mr Lawson finally submitted that Mr Cowan for his part regretted the incident and he expresses his remorse for it occurring. He wished this Committee to know he realised that as a License Holder his standards must be higher and he is prepared to accept the consequences of his actions.

REASONS FOR DECISION:
8) The charge having been admitted is accordingly proven.

SUBMISSION AS TO PENALTY:
9) Mr Carmichael advised this Committee that Mr Cowan is a single man aged 41 years and that he is employed full time in Harness Racing. Mr Cowan has not previously appeared on similar charges.

Mr Carmichael submitted to this Committee that the JCA Penalty Guide provides for a starting point penalty for a breach of Rule 303(2) to be a fine of $500.00 and/or one month’s suspension. Mr Carmichael submitted that a suspension was not appropriate in this case and that the matter could be adequately disposed of by way of a fine. Mr Carmichael submitted that a fine in the range of $350.00 to $500.00 was appropriate and he did not seek an order for costs.

10) Mr Lawson in his submission asked the Committee to take into account the guilty plea form Mr Cowan and his co-operation, the fact that it was Mr Cowan’s first offence and out of character for him, the fact that Mr Cowan does show remorse for his actions, no assault charges were laid, no other Licence Holders were involved and that the Security Guard could not be considered to be an Official of the Club.

Mr Lawson submitted that his matter to be dealt with by way of a fine which should not be any more than $500.00

REASONS FOR PENALTY:
11) The Committee has listened to and reviewed all the evidence presented to it.

In the Committees view there is a considerable doubt as to whether the “wrist bands” referred to in the proceedings existed. Mr Cowan says that he was given wrist bands on the day and yet when approached by the Security Guard he did not produce them nor did he produce them for the head of the Security Company or the Stipendiary Steward on the day and further he did not produce them when interviewed by Mr Carmichael. The Committee does not believe that Mr Cowan had the appropriate wrist bands at any stage.

12) In the Committee’s view the Security Guard was only doing his job. He was employed by the Club to officiate in the Sponsor’s area and if a person in that area was unable to produce the appropriate wrist band then the Security Guard had a duty to remove that person from the area. That is what he was doing on this occasion.

13) We are told that Mr Cowan has been involved in Harness Racing for approximately 25 years and that he is not only a Licensed Open Horseman but also is a Senior Staff Member in a large training establishment. Mr Cowan is therefore a very experienced person and quite frankly he knows the drill on race day and knows that if you wish to go into particular restricted areas then you have to have the appropriate pass or identification to enter that area. We do not believe that Mr Cowan did have the wrist bands as he claimed and this was the cause firstly of him being asked to leave the area and secondly of the altercation with the Security Guard.

14) A particular aggravating feature in this matter is that the altercation was at the entrance to the Sponsor’s area. There may well have been Sponsor’s Guests in that area who do not regularly attend race meetings and they witnessed a scuffle at the entrance to the Sponsor’s area. It does not reflect well on Harness Racing.

15) Mr Cowan should know how to conduct himself on race day and he has not only let himself down but he has let the Industry down as well.

16) We are told of Mr Cowan’s cooperation in regard to this charge and of his guilty plea but that we note that in the first instance he did not admit the charge and that it was not until later on he changed his mind. It may well be that it was the result of sound advice from Mr Lawson.

17) We will give Mr Cowan credit for his good record and for eventually admitting the charge.

18) We deal with this charge by way of a fine but warn Mr Cowan that this is a serious charge. We are aware that the JCA Guidelines provide for a starting point penalty fine of $500.00 and/or suspension for one month. Mr Carmichael has submitted that there should be a fine within a range up to $500.00 and Mr Lawson has submitted that there should be a fine not exceeding $500.00. In considering all matters put to us today we consider that a fine of $450.00 is appropriate.

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penalty:

19) We accordingly make the following orders:
(a) Mr Cowan is fined sum of $450.00
(b) Mr Cowan is ordered to pay costs to the JCA of $250.00

hearing_type: Non-race day

Rules: 303(2) and 1003(1)

Informant: T R Carmichael - Racing Investigator

JockeysandTrainer:

Otherperson:

PersonPresent: Mr R Lawson - Lay Advocate representing Mr Cowan

Respondent: Thomas James Cowan - Licensed Open Horseman

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