Non Raceday Inquiry RIU v M Mann 1 December 2015 – Decision as to Penalty dated 31 December 2015 – Chair, Prof G Hall

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hearing_title: Non Raceday Inquiry RIU v M Mann 1 December 2015 - Decision as to Penalty dated 31 December 2015 - Chair, Prof G Hall

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BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT PALMERSTON NORTH
UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT (RIU)
Informant

AND Mrs Michelle MANN, Licensed Greyhound Trainer
Respondent

Information No: A4171

Judicial Committee: Prof G Hall, Chairman - Mr T Utikere, Committee Member

Appearing: Mr A Irving for the Informant - Mr S Mann for the Respondent

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY

[1] The respondent, Mrs Michelle Mann, a licensed public trainer under the Rules of the New Zealand Greyhound Association, in a decision we delivered on 14 December last was found to be in breach of r 87.1(p) of the New Zealand Greyhound Racing Association Rules in that on 23 October 2015 at a race meeting conducted by the Wanganui Greyhound Racing Club at Wanganui, she failed to comply with a lawful order made by Stipendiary Steward, Mr Michael Austin.

[2] Rule 87.1(p) states:
Any person (including an Official) commits an offence if he/she disobeys or fails to comply with the lawful order of a Steward or other Person having Official duties in relation to Greyhound racing.

[3] Rule 88.1 provides:
Any person found guilty of an offence under these Rules shall be liable to:
a. a fine not exceeding $10,000.00 for any one (1) offence; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off.

[4] We required the parties to prepare written submissions as to penalty. We have received these and now proceed to impose penalty.

[5] The facts are stated in our earlier decision and we repeat only those that we believe are relevant to the imposition of penalty.

[6] Mrs Mann, who had kennelled her dog BOSS APPEAL for Race 6 at the Wanganui Greyhound Racing Club’s meeting at Hatrick Raceway on 23 October 2015, returned to the kennel prior to the race to find BOSS APPEAL in distress.

[7] Mr Jansen, the official raceday veterinarian, attended to BOSS APPEAL, but the dog did not respond to his medical interventions.

[8] Mr Jansen was satisfied the cause of death was asphyxiation, probably as a result of a physical obstruction. He released the dog to the respondent without the approval of the Chairman of Stewards, Mr Austin.

[9] Mrs Mann then removed BOSS APPEAL from the course and gave the dog to her husband, Mr Stephen Mann.

[10] Mr Austin directed the respondent to return BOSS APPEAL to the track. Mrs Mann endeavoured to contact her husband during the course of the evening by ringing his cellphone. He had turned this off due to the number of calls inquiring as to what had happened to BOSS APPEAL and thus the respondent’s attempts were unsuccessful.

[11] When Mrs Mann was unable to contact her husband she failed to consider the possibility of employing an alternative method of contacting him or her reporting to the Stewards to obtain further instructions before leaving the course. In choosing to return home and once there, making no attempt to contact the Stewards or to follow their directive, we have held she was in breach of the Rules.

Submissions

[12] The informant stated Mrs Mann had been licensed in the industry for 13 years. He referred to the obligation upon licence holders to act professionally, properly and honestly at all times.

[13] Mr Irving submitted that a breach of r 87.1(p) had to be viewed seriously and any penalty had to act as a deterrent to others. A failure to follow a lawful rule was to be regarded as an affront not only to the Stewards but also to the greyhound industry.

[14] The RIU submitted a penalty of $500 was appropriate and, in so doing, relied on the fine of $300 imposed in RIU v McInerney (2014) where Mr McInerney failed to obey a directive of a Steward to come to the Stewards’ Room and instead chose to trial dogs.

[15] The RIU acknowledged the fact that Mr Jansen, the veterinarian, had made an error of judgment in releasing BOSS APPEAL to Mrs Mann without consultation with the Chairman of the Stewards was a mitigating factor.

[16] Mrs Mann had a previous serious breach of the Rules. In 2012 she had been found to be in breach of r 88.1(w) in that she made oral statements to a Racecourse Inspector, knowing the statements to be false and intended to mislead. The informant’s submissions do not indicate the penalty, which was imposed on that occasion. She had also been formally warned (we assume by the RIU) on 23 November last for a breach of the same rule when she made a false statement to a Steward regarding comments she had made about another trainer.

[17] On 16 October last she appeared before the GRNZ Integrity Committee as a result of incidents relating to her and her husband’s conduct. She was allowed to retain her licence provided she adhered to specified conditions.

[18] Mr Irving summarised these matters by submitting: “It is clear from her history that Mrs Mann takes issue with officials who regulate the greyhound industry. She has proven on occasions that she is dishonest in her dealings with them.”

[19] Mr Irving disputed that Mrs Mann had been unable to get hold of Mr Mann via cellphone, that the cellphone had been turned off, and that the dog had been buried prior to the respondent arriving home. The RIU did not call any evidence in rebuttal of these matters. Mr Irving alleged that the respondent’s attitude to a post-mortem only changed when rumours began circulating that BOSS APPEAL had been drugged.

[20] The RIU also alleged that Mrs Mann had been “less than co-operative throughout this investigation”. She had been reluctant to make herself available for interview, had attempted to dictate the place of interview, and had conveniently been unable to remember certain events surrounding the incident.

[21] The RIU concluded their submissions by stating the respondent had never acknowledged her wrongdoing or expressed any remorse for her actions.

[22] The RIU sought costs of $150 by way of witness expenses for Mrs Trass, who had travelled to Palmerston North from Wanganui, in order to give evidence. The RIU observed this was the amount ordered to be paid to a Wanganui Greyhound Racing Club official in RIU v Hodgson (2015) where the sum of $300 had been sought.

[23] Mr Mann prepared submissions on behalf of Mrs Mann. These submissions were brief. He stated she had only been in trouble once before moving south. He alleged there was “starting to be a personal vendetta against Mrs Mann by the RIU as they can’t stop picking on her and making things up and hard for her.”

[24] Mr Mann stated the respondent had “always tried in everyway to obey all the rules but on this occasion being so upset and in shock over the death of BOSS APPEAL it did not register in her head clearly what she was doing and is very sorry about this as BOSS APPEAL was like a child to her not a dog.”

[25] Mr Mann disputed that Mrs Mann had made a false statement to a Steward on 23 November.

[26] The respondent alleged that Mr Austin was at fault, stating, “He did not do his job properly and if he had of this would never have happened.”

[27] Mr Mann alleged that Mrs Mann should never have been forced into the interview with Mr Irving at the race course and by law she did not have to sign or enter a plea at that time as she needed to seek advice from a lawyer first.

[28] With respect to the quantum of penalty, Mr Mann stated that having regard to the circumstances of the death of BOSS APPEAL Mrs Mann had suffered deeply and a $200 fine would be enough, as she trained on a 50/50 basis and did not have a lot of money.

[29] Finally Mr Mann submitted that the Wanganui Greyhound Racing Club had not made contact over the death of BOSS APPEAL, therefore they could pay Mrs Trass the $150 the RIU were asking for by way of witness expenses, as Mrs Trass works for them.

Decision

[30] Both the informant’s and respondent’s submissions contain reference to matters that we believe are irrelevant to the imposition of penalty in this case.

[31] The 23 November matter has never been formally placed before us and, as the respondent disputes it, we disregard the matter. We have commented on the circumstances leading up to and the conduct of the interview with Mrs Mann in our earlier decision. We see no need to elaborate upon this.

[32] We do not accept the respondent’s criticism of Mr Austin. We can understand why it was thought that a post mortem was appropriate. Mr Austin took the necessary steps to ensure that this occurred. The actions of Mr Jansen, in releasing the dog, were beyond Mr Austin’s control. Equally, however, no criticism can be made of Mrs Mann’s decision to take BOSS APPEAL off the course.

[33] We have found the case of McInerney to be of only limited assistance. We note that in that case the respondent deliberately chose to ignore the Steward’s directive, as he believed it was more important to complete another task (trialling dogs). He was told on 2 occasions on raceday to come to the Stewards’ Room, and it was 2 hours after the first directive and almost 1 hour after the second, that he presented himself. The Committee described his actions as showing “a blatant disregard” for the lawful order of a Steward. He too, had a previous breach of the rule, committed 7 years earlier, although the Committee disregarded this when imposing penalty, due to lapse of time and the circumstances of that breach being “vastly different” to the one before it.

[34] The position of Mrs Mann is different to that of Mr McInerney. Despite Mr Irving’s submissions to the contrary, we impose penalty on the factual basis that underpinned our earlier decision. This is that during the time Mrs Mann was still on the track she attempted to comply with her obligations under the Rules of Greyhound Racing. She was unable to contact her husband and, rather than considering to employ an alternative method of contacting him or reporting to the Stewards to obtain further instructions before leaving the course, she chose to return home. Once there, she made no attempt to contact the Stewards or to follow their directive.

[35] We accept that Mrs Mann was very upset when on the racetrack due to the sudden death of BOSS APPEAL. This is supported not only by her evidence, but also by that of Mr Austin. He stated that Mrs Mann was very distressed when he spoke to her before race 10. We do not accept that she was attempting to disrupt the work of the Stewards on the day or that her actions were an affront to the Stewards and the industry.

[36] Mr Irving submitted that Mrs Mann has never acknowledged her wrongdoing nor expressed any remorse for her actions. When appearing before us on the day and, especially when giving evidence, she was clearly still traumatised by the events on race night. In hindsight, she accepted she should have contacted the Stewards the next day (and we would again emphasise it should have been after her last dog raced on the night and before leaving the course). She clearly regretted not having done so. It is neither necessary nor appropriate for us to speculate as to the impact upon her decision-making of her attitude to the authority of the Stipendiary Stewards.

[37] The penalty we impose has to hold Mrs Mann accountable for her actions. The previous breach indicates a need for us to have regard also to specific deterrence. We believe the circumstances are so unusual as to not engage general deterrence.

[38] Taking into account all these matters, and especially the unusual circumstances surrounding the breach and the previous breach of r 88.1(w), we impose a fine of $350.

[39] The RIU have sought the payment of costs of $150 by way of witness expenses to Mrs Trass. This was the amount ordered to be paid to a Wanganui Greyhound Racing Club official in RIU v Hodgson and the RIU appears to seek the order on that basis.

[40] It is not appropriate that Mrs Trass be compensated for her time by way of a costs order; nor that the Wanganui Greyhound Racing Club pays her expenses, as Mr Mann has submitted. It may be that the Club will compensate her for her time but that it is a matter for them. However, we believe an order to assist with the meeting of her travel costs is appropriate. We understand Mrs Trass has travelled by car from Wanganui to Palmerston North in order to give evidence. This is a return distance of around 140 kms. The current Government travel rate is 77 cents/km. We round off our award at $100.

[41] Mrs Mann is to pay costs to the RIU of $100.

[42] A small contribution to the costs of the JCA is also just and reasonable. There was a half-day hearing of the matter.

[43] We order Mrs Mann pay costs in the sum of $250 to the JCA.

Dated at Dunedin this 31st day of December 2015.

Geoff Hall, Chairman

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