Non Raceday Inquiry – NZGRA v NP Green – 17 February 2011 – decision 3 March 2011

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decisiondate: 24/02/2011

hearing_title: Non Raceday Inquiry - NZGRA v NP Green - 17 February 2011 - decision 3 March 2011

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

GRNZ v PHILIP GREEN

Hearing before Non-Raceday Judicial Committee

Judicial Committee: Mr Bruce Squire QC (Chairman) - Mr Bryan Scott

Present: Mr Murray Branch: Counsel for GRNZ, Mr Philip Green

Date of Hearing: 17 February 2011

Venue: Cambridge Raceway

DECISION OF JUDICIAL COMMITTEE

1. Introduction:

1.1 This hearing of the Judicial Committee was convened to consider and determine a charge of breach of Rule 64.2 of the New Zealand Greyhound Racing Rules ("the Rules") brought against Mr Philip Green. The charge set out in the Charge Sheet completed by Mr M R Austin, Stipendiary Steward and served on Mr Green on 20 January 2011 alleged that on 5 December 2010 Mr Green committed a breach of Rule 64.2 in that he :
"…scratched (Casual Tea) from a race on today's card without a valid reason".
Although not specifically identified in the Charge Sheet the charge arose from the scratching of Casual Tea from Race 8 of the Auckland Greyhound Racing Club's meeting at Manukau Stadium on 5 December 2010. The race from which Casual Tea was scratched was the Thornton Auctions Final. Mr Green denied the charge.
1.2 At the hearing evidence was given by both Mr Austin and Mr Green. Without traversing the evidence in detail it is enough to record there was no dispute Mr Green was the trainer of the greyhound Casual Tea at all times relevant to the charge. Nor was there any dispute Casual Tea was withdrawn by Mr Green from the Thornton Auction Final run at Manukau Stadium on 5 December 2010 after it had qualified for the race which was the final of a Totalisator Race within the meaning of Rule 64.2. Mr Green however denied Casual Tea was withdrawn from the race without a valid reason. In order to understand the basis upon which that contention was advanced by Mr Green and answered by GRNZ, it is necessary to outline in some detail relevant prior events and evidence given in relation to those events.
1.3 On 24 October 2010 Mr Green nominated Casual Tea for the COd Greyhound's North Maiden Distance Series heats (hereafter the "COd Series") to be run at Manukau Stadium on 2 November 2010. The Official Information Bulletin of GRNZ for October 2010 described on its cover as "On Track", in advising the closing date for nominations and other relevant information about the COd Series, recorded the Series Final was to be held by the Auckland Racing Greyhound Club on 5 December 2010 for a stake of $2,200. 00. Following the heats run on 2 November 2010 Casual Tea qualified for the COd Series Final.
1.4 On 24 November 2010 Mr Green nominated Casual Tea for the Thornton Auction Series heats to be run at Manukau Stadium on Sunday 28 November 2010. The November edition of "On Track" recorded that the Thornton Auction Series the final was to be staged also on 5 December 2010, the same date as the COd Series final. Casual Tea ran fourth in the Thornton Auction Series heats on 28 November 2010 and accordingly qualified for the final of that Series. Mr Green said in evidence that when he nominated Casual Tea for the Thornton Auction Series on 24 November 2010 he was in possession of both the November and December 2010 editions of "On Track". However whereas the November edition of "On Track" clearly showed the Thornton Auction Series final as being scheduled to be run on 5 December 2010 at Manukau Stadium the December edition did not. The December edition of "On Track" for 5 December 2010 simply showed the COd Series final was to be run at Manukau Stadium that day. There was no reference to the final of the Thornton Auction Series being run that day. Mr Green said in evidence that because the December edition of "On Track" did not show the Thornton Auction Series final being run on 5 December 2010 he believed Casual Tea was scheduled only to run in the Final of COd Series on that day, notwithstanding the entry in the November edition of "On Track" referred to earlier, which indicated otherwise.
1.5 In evidence Mr Austin told the Committee that greyhounds are, for reasons relating to the health and welfare of the animals, not permitted to race in more than one race on any day of a race meeting. He said that in the event a greyhound was presented to race in more than one event on a particular day, the Stewards would exercise powers available to them to have the greyhound withdrawn from a race. He said this was well known and understood by owners and trainers of greyhounds. Mr Green for his part did not challenge this, nor did he claim to be unaware of it. In the result, by reason of the events recorded, Mr Green had got himself into the position where Casual Tea had qualified for two finals to be run at Manukau Stadium on 5 December 2010. He told the Committee in evidence that on Wednesday 1 December 2010, the date the fields for the meeting on 5 December 2010 came out, he was spoken to by a Mr Quirk, a Stipendiary Steward who GRNZ, somewhat surprisingly in the circumstances, elected not to call to give evidence before us. He said Mr Quirk told him he would have to scratch Casual Tea from one of the races it was scheduled to run in on 5 December 2010 and he would be charged with a breach of Rule 64.2. Mr Green said he did not then have the opportunity to explain to Mr Quirk that he believed, for the reasons already outlined, the Thornton Auction Series Final was not being run on 5 December 2010. Mr Green said that he withdrew Casual Tea from the Thornton Auction Series final by telephoning the Secretary of the Auckland Greyhound Racing Club on the morning of 4 December 2010. He said he did not then give any reason for the scratching.
1.6 The following day, 5 December 2010, Mr Green said he was again spoken to by Mr Quirk who at that time was accompanied by Mr Austin. The discussion took place at Manukau Stadium. He said Mr Quirk told him he was in breach of Rules 64.2 and 64.5 but that he was not interested in the breach of Rule 64.5. Mr Green said that he told Mr Quirk he had done nothing wrong and that he only scratched Casual Tea from the Thornton Auction Series final because of the confusion that had arisen from the November and December editions of "On Track" referred to earlier, and his belief up to that time the Thornton Auction Series final was not being run on 5 December 2010. Mr Green said Mr Quirk accepted his explanation as being a valid reason for the scratching of Casual Tea from the Thornton Auction Series final and indicated that would be the end of the matter. Evidence from Mr Austin however revealed a different view was taken once GRNZ became aware of what was contained in the October and November editions of "On Track" as to the running of the finals for the COd and the Thornton Auction Series and subsequently a decision was taken to lay the charge now faced by Mr Green.
1.7 Under questioning from Mr Branch Mr Green conceded that whilst he was aware of the inconsistency between the November and December editions of "On Track" as to when the Thornton Auction Series final was to be run he took no steps to clarify the position and never inquired as to when the Thornton Auction Series final was to be run once he believed it was not on 5 December 2010. When asked by Mr Branch as to why he waited until 4 December 2010 to scratch Casual Tea when he was aware on 1 December 2010, when the fields came out confirming Casual Tea was scheduled to run in two races on 5 December 2010, Mr Green gave no reason other than indicating he had thought of asking for what he called a club scratching once he realised the position he was in. Mr Green reiterated however that the situation which arose had come about because of the failure of GRNZ to indicate in the December edition of "On Track" that the Thornton Auction Series final was to be run on 5 December 2010 and that he was entitled to rely on the accuracy of the document being an official publication produced by GRNZ.

2. Submissions:
2.1 Mr Branch summed up GRNZ's case by making two submissions. First he submitted the committee should not accept the claim by Mr Green he was confused by the apparent contradictory entries in the November and December editions of "On Track". He said that was simply a smoke screen devised by Mr Green to divert attention from the fact he had got himself into the position he did by nominating Casual Tea for the Thornton Auction Series when it had already qualified for the COd final to be run on 5 December 2010. He said that by nominating Casual Tea for the Thornton Auction Series in such circumstances, Mr Green must have known he would get caught by Rule 64.2 if Casual Tea qualified for the final of that Series as it did, and he would have to scratch it either from that race or the COd final to be run the same day. Alternatively, Mr Branch submitted that if the true reason for the scratching of Casual Tea from the Thornton Auction Series Final was what Mr Green had claimed in evidence, that was not a valid reason within Rule 64.2 because knowing of the differences between the November and December editions of "On Track" as to whether the Thornton Auction Series final was to be run on 5 December 2010 Mr Green took no steps to clarify the position. Mr Branch submitted that Mr Green should not be permitted to advance circumstances which he said effectively arose out of his own default to be accepted as a valid reason for scratching Casual Tea from the Thornton Auction Series final in the circumstances he did.
2.2 For his part Mr Green submitted no harm had arisen from his scratching of Casual Tea from the Thornton Auction Series final. He said he was entitled to rely on the December edition of "On Track" an Official Publication of GRNZ which did not show the Thornton Auction Series final was to be run on 5 December 2010 despite what was contained in the November edition of the same publication. He accepted that perhaps he might have done more to clarify the position but said there was at least confusion and it was not "his job" to do so. He referred to the fact the Stipendiary Steward Mr Quirk had accepted the reason he gave for Casual Tea's scratching was a valid reason within Rule 64.2 and said that he too believed it was a valid reason. He denied the reason he had given for scratching Casual Tea was simply an explanation of convenience to cover the difficulty he had got into by nominating the greyhound for the Thornton Auction Series after it had qualified for the COd final.
 

3. Discussion:
3.1 The single issue upon which the determination of the charge rests, is whether GRNZ has proved to the required standard Mr Green did not have a valid reason for withdrawing Casual Tea from the Thornton Auction Series final. In his submissions Mr Branch invited us to conclude the explanation given by Mr Green was simply contrived by him in order to create what he called a "smoke screen" to divert attention from the fact Mr Green had created the difficulties which arose by nominating Casual Tea for the Thornton Auction Series after it had qualified for the COd final to be run on 5 December 2010. Having seen and heard Mr Green give evidence we are not persuaded he has fabricated his explanation as submitted by Mr Branch and we do not accept the submission made in that regard.
3.2 There is no doubt there was contradiction in the sense explained by Mr Green between the November and December editions of "On Track" as to the date of the running of the Thornton Auction Series final. The contradiction arose by reason of the failure of GRNZ to include in the December edition any reference to the Thornton Auction Series final being run at the Manukau Stadium on 5 December 2010 in that part of the document recording Race Meeting Schedules reserved for that day. However it is clear from the evidence Mr Green was aware of the entry in the November edition which recorded the Thornton Auction Series final was to be run on 5 December 2010 when he nominated Casual Tea for that Series on 24 November 2010 after it had qualified for the final of the COd Series to be run on the same date. Unquestionably in such circumstances he must have known when he nominated Casual Tea for the Thornton Auction Series there was at least a possibility the entry in the November edition of "On Track" was correct and that if Casual Tea qualified for the final of that Series he was going to be in difficulty in terms of Rule 64.2 given that Casual Tea would be scheduled to run in two finals on the same day. That situation clearly called for steps to be taken by Mr Green to clarify the position but he took no such steps and simply elected to rely on what was contained in the December edition of "On Track" in proceeding with the nomination on 24 November 2010. In doing so he was at fault in a sense we would regard as almost equivalent to wilful blindness. We do not accept that in such circumstances Mr Green can legitimately claim to have a valid reason for the withdrawal of Casual Tea from the Thornton Auction Series final when the reason for that withdrawal was bought about by his failure to make inquiry, which he ought reasonably to have made in the circumstances before nominating Casual Tea for the final,. Had he made such inquiry it would plainly have eliminated the confusion he now seeks to rely on to support his claim he had a valid reason for the withdrawal.
 

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4. Result:
4.1 In the result we are satisfied on the evidence put before us that GRNZ has proved to the required standard Mr Green did not have a valid reason for the withdrawal of Casual Tea from the Thornton Auction Series final to be run at Manukau Stadium on 5 December 2010 and we find the charge against him proved accordingly.
4.2 GRNZ will have seven days from the date of this decision to file any submissions it wishes to make as to penalty, costs and related matters arising from the finding recorded in paragraph 4.1. Those submissions are to be served on Mr Green within the same seven day period and the date of service confirmed with the Executive Officer of the Judicial Control Authority through whom the submissions are to be filed. Mr Green is to have seven days from the service of GRNZ's submissions on him to file any submissions he wishes to make in reply. Those submissions are also to be filed with the Executive Officer of the Judicial Control Authority.

DATED this 3rd day of March 2011

__________________________
Bruce Squire QC (Chairman)

__________________________
Bryan Scott (Member)

 

hearing_type: Non-race day

Rules: 64.2

Informant: M Austin - Stipendiary Steward Assistant

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Otherperson:

PersonPresent: Mr M Branch - Counsel for NZGRA

Respondent: Mr NP Green - Public Trainer

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