Appeal B McDonald and T Donaldson v RIU – Decision dated 7 August 2015

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hearing_title: Appeal B McDonald and T Donaldson v RIU - Decision dated 7 August 2015

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BEFORE THE APPEALS TRIBUNAL

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN BRETT MCDONALD, Class A Licensed Trainer

First Appellant

AND TANYA DONALDSON, Licensed Stable hand/track work rider

Second Appellant

AND THE RACING INTEGRITY UNIT

Respondent

Appeals Tribunal:

Sir Bruce Robertson KNZM (Chairman)

Mr Bruce Squire QC

Present:

Mr Brett McDonald, Class A Licensed Trainer
Ms Tanya Donaldson, Licensed Stable hand/track work rider
Mr Phillip Morgan QC, Counsel for Mr McDonald
Mr Phillip Cornegé, Counsel for Ms Donaldson
Mr Brian Dickey, Counsel for the Racing Integrity Unit
Mr Mike Godber, Racing Integrity Unit
Mr Paul Williams, Registrar
Mr Charles Holdcroft (father of Mr Brett McDonald)

Venue: Travelodge Hotel, Wellington

Date: 28 July 2015

DECISION OF APPEALS TRIBUNAL

1. Brett McDonald and Tanya Donaldson appealed against a decision of a non raceday Judicial Committee (JC) dated the 13th of April 2015 in which the committee imposed on Mr McDonald a fine of $7,500, disqualified him for a period of two years and six months and ordered him to pay costs of $5,500. Ms Donaldson was fined $5,000, disqualified for a period of 12 months and was ordered to pay costs of $5,500. In the notice of grounds of appeal filed on the 29th of April there were a substantial number of challenges to the decision but by the time the matter came on for hearing the ambit of the appeal was greatly reduced.

2. On the 30th of April we scheduled a telephone conference to consider an application for stay pending the hearing of this appeal. By Minute of that day we declined that application but indicated that there could be a hearing on the 15th of June. Subsequently the parties mutually requested a deferment of the hearing and it was set down for the 28th of July.

3. The four charges to which both pleaded guilty were:

Information 7065

On the 9th day of December 2014, at Cambridge, being a licensed stable hand, administered, Phenylbutazone, a prohibited substance, to the unnamed 3 year old gelding (Lucky Unicorn – Lady Francesca) for the purpose of affecting the speed, stamina, courage or conduct of the horse, which raced in Race 6 at the trials meeting at Ruakaka that day, and that she is in breach of New Zealand Thoroughbred Racing Rule 801 (1)(n)(i) and is therefore subject to penalty or penalties which may be imposed pursuant to Rules 801 (2) and 801 (3).

Information 7066

On the 9th day of December 2014, at Cambridge, being a licensed stable hand, administered, Phenylbutazone, a prohibited substance, to the unnamed 2 year old gelding (Stravinsky - Zablonde) for the purpose of affecting the speed, stamina, courage or conduct of the horse, which raced in Race 1 at the trials meeting at Ruakaka that day, and that she is in breach of New Zealand Thoroughbred Racing Rule 801 (1)(n)(i) and is therefore subject to penalty or penalties which may be imposed pursuant to Rules 801 (2) and 801 (3).

Information 7067

On the 9th day of December 2014, at Cambridge, being a licensed stable hand, administered, Phenylbutazone, a prohibited substance, to the unnamed 4 year old stallion (Faltaat – New Height) for the purpose of affecting the speed, stamina, courage or conduct of the horse, which raced in Race 2 at the trials meeting at Ruakaka that day, and that he is in breach of New Zealand Thoroughbred Racing Rule 801 (1)(n)(i) and is therefore subject to penalty or penalties which may be imposed pursuant to Rules 801 (2) and 801 (3).

Information 7068

On the 9th day of December 2014, at Cambridge, being a licensed stable hand, administered, Phenylbutazone, a prohibited substance, to the unnamed 3 year old gelding (Starcraft - Zago) for the purpose of affecting the speed, stamina, courage or conduct of the horse, which did not race at Ruakaka that day due to the meeting being abandoned, and that he is in breach of New Zealand Thoroughbred Racing Rule 801 (1)(n)(i) and is therefore subject to penalty or penalties which may be imposed pursuant to Rules 801 (2) and 801 (3).

4. Although there were pleas of guilty entered by both Appellants to all charges there was a lengthy hearing on the 24th of March as to the factual situation. This preceded the delivery of the decision of the JC.

5. All the charges alleged a serious racing offence in respect of which the maximum penalty was disqualification for any specific period or for life, suspension from holding or obtaining a licence for a period not exceeding 12 months and a fine not exceeding $50,000. The conclusion of the Committee was:

“There were multiple breaches of the prohibited drug rule. The Committee considers the offending to be serious. The various explanations made are difficult to reconcile and unsatisfactory. In order to meet the sentencing principles set out above the Committee believes that disqualification is the only appropriate penalty that can be imposed in respect of both Mr McDonald and Ms Donaldson. It is accepted that Mr McDonald’s culpability is at a more significant level. That will reflect in the period of disqualification. In the case of Mr McDonald the disqualification will be for a period of two years and six months commencing on 1 May 2015. In the case of Ms Donaldson the period of disqualification will be for twelve months also commencing on 1 May 2015. The date set for the commencement of the disqualifications is to enable Mr McDonald and Ms Donaldson to make arrangements for horses currently in the stable to be relocated. In addition to the period of disqualification Mr McDonald will pay a fine of $7,500. Ms Donaldson will pay a fine of $5,000. Costs will be paid by both Mr McDonald and Ms Donaldson in the sum of $ 2,500 each in relation to the RIU. In respect of the costs incurred by the JCA Mr McDonald and Ms Donaldson will each pay the sum of $3,000.”

6. Although the Committee had set out well recognised and accepted sentencing principles, referred in detail to the submissions made before it and reviewed the evidence which they had heard, there was not a sustained discussion as to how the particular periods of disqualification were determined having regard to the overall structure of the relevant provisions and to earlier cases.

7. For completeness it is important to note what was also said by the JC at 4.10:

What might have caused the catastrophic injuries to the Lucky Unicorn/Lady Francesca gelding occupied a good deal of the hearing time on 24 March. It is to be remembered that the Defendants are charged with causing to be administered a prohibited substance to four (4) horses. One of those horses did not start in its trial. As was noted earlier the meeting was abandoned following the sixth event. The Defendants are not charged with causing the death of the Lucky Unicorn/Lady Francesca gelding. Positive proof of the actual cause of a fall following catastrophic injuries to a horse may well be very difficult. Dr Grierson acknowledged as much. Proof of what caused the injuries is not an element of the offences with which the Defendants are charged. Sending horses to race meetings or trials when prohibited substances have been administered constitutes a serious racing offence. The death of the horse and the serious injuries suffered by Mr Dell are aggravating considerations. The anti-inflammatory substance phenylbutazone would not be prohibited on race days or at trials if it were not the case that New Zealand Thoroughbred Racing has been persuaded by a substantial body of veterinary advice that the drug can affect the performance of a horse that is racing or taking part in trials. Phenylbutazone is a prohibited substance in Australia.

8. Before the JC, and when the application for a stay was made before us, it was contended that each of the Appellants should have been dealt with only by way of monetary penalty but Mr Morgan (who had not appeared earlier), in his submissions to us accepted that a period of disqualification was inevitable in the circumstances of the case. He however argued that the period imposed was manifestly excessive and could only have been reached as a consequence of the JC:

(a) Improperly having regard to the death of the horse and injury to the jockey;

(b) Improperly being influenced by the suggestion that this offending was motivated by profit; and

(c) Failing to allow any discount for mitigating features.

9. In response the RIU submitted that far from lessening the penalties we should increase the periods of disqualification because those imposed by the JC were grossly inadequate when considered against the seriousness of the offending particularly that of Mr McDonald.

10. At the commencement of the hearing we discussed with Counsel our powers on appeal and noted the provisions of various relevant rules which provide:

“1005 (4) The Appeals Tribunal shall have the same jurisdiction and authority as the Judicial Committee or other persons or body appealed from, including powers as to amendment, and shall have power to receive such further evidence, if any, as it thinks fit. Except by special leave of the Appeals Tribunal an appellant shall not argue or be permitted to argue any ground of appeal not set out in the notice of appeal.”

“1007 (1) In its decision the Appeals Tribunal may:

(d) quash the penalty imposed and either impose any penalty (whether more or less severe) which the Tribunal whose decision is appealed against could have imposed pursuant to the finding, order or decision as so amended or deal with the appellant in any other way in which the Tribunal whose decision is appealed from could have dealt with the appellant on the finding, order or decision as so amended;”

“1007 (2) In the case of an appeal against penalty the Appeals Tribunal may:

(b) if the penalty (either in whole or in part) is one which the Tribunal imposing it had no jurisdiction to impose, or is one which is inadequate or inappropriate or manifestly excessive, either:

(i) quash the penalty and impose such other penalty permitted by these Rules (whether more or less severe) in substitution therefore as the Appeals Tribunal considers ought to have been imposed or deal with the appellant in any other way that such Tribunal could have dealt with him or it on finding the Information or charge proved;”

11. On their face the provisions could suggest that there was an open discretion available to an Appeals Tribunal but we do note the final sentence of 1005(4).

12. The only appeal filed in this case was by Mr McDonald and Ms Donaldson. There does not appear to be any specific provision for a cross appeal. The first time that the Appellants or the Appeal Tribunal were aware that there was a desire by RIU to increase the disqualification was when the Respondent’s submissions were filed a week before the hearing.

13. It appears at least arguable that if there was not a Notice of Appeal seeking such a course then special leave would have been required to argue that the periods of disqualification should be increased. As it transpires it is not necessary for us to reach a concluded view but the authorities may wish to consider how the issue of what is in effect a cross appeal should be dealt with to ensure fairness, transparency and equity to all involved in the process.

14. A substantial part of the defended fact hearing was concerned with whether the administration of Phenylbutazone was causative of the death of the horse LUCKY UNICORN - LADY FRANCESCA gelding and the catastrophic injuries sustained by the Jockey.

15. The JC did not make any such finding. It specifically noted that this aspect was not an element of the offence. We have not been asked to go behind that conclusion and it is not appropriate that we should review the competing evidence which was called or the submissions made. As Mr Morgan submitted, in the absence of any suggestion that any of the horses was lame or otherwise disabled before the Phenylbutazone was administered there was little divergence between the experts from whom the JC heard. Suffice it to say that for sentencing purposes it had to be accepted that there was not a causative link between the administration of the Phenylbutazone and the death and/or injuries which were sustained.

16. Before us there was some dialogue between Counsel as to what had been admitted by the pleas of guilty which were entered by each of the Appellants. We accept Mr Morgan’s submission that each of the Informations alleged the administering of a prohibitive substance for the purpose of affecting “the speed, stamina, courage or conduct of the horse.” These four elements are disjunctive. The Appellants’ position is that they admitted the charges because the Phenylbutazone was administered as an anti-inflammatory. In New Zealand there is no question that this drug is frequently used in that way to provide relief. What is prohibited is the presentation of horses at trial or on raceday with Phenylbutazone in their system. The evidence of the Appellants before the JC and in statements made previously were not easily reconciled and were not unsurprisingly rejected by the JC. Putting them to one side however there was no material which enabled a conclusion that what was being admitted was any more than the administration of Phenylbutazone to ease the position of the horses a concept which falls within affecting the “conduct of the horse.” Although this clearly happened at a time which was not permitted, frequently Mr Dickey sought to argue that it was admitted by the Appellants that the administration of the Phenylbutazone was for some more sinister reason relating to “speed, stamina or courage.” The totality of the evidence did not enable that inference to be drawn. If the RIU was dissatisfied with the admission which was made it was for it to call other evidence or to demonstrate that there were inevitable inferences which could be drawn from the totality of the material. That was not the case.

17. On the other hand we are not impressed by the submission that the Appellants even though they pleaded guilty, did not or may not have had the necessary intent. They cannot advance that position. They are bound by what they admitted and the consequences of it.

18. The other sustained challenge relates to the idea that the offending was motivated by profit. It goes without saying that people in the racing industry hope to make by a profit but a calm and balanced assessment of all the material does not suggest anything sinister or unethical or improper in the fact that the horses might be sold. Despite the RIU’s vigorous submission on this point it was without a convincing foundation.

19. Before us reference was made to a previous decision in Harness Racing New Zealand (HRNZ v Cations⁷ 4 September 2009) which had not been drawn to the attention of the Judicial Committee. We note at once that this was an offence under the Harnessing Racing Rules but Mr Morgan properly pointed out that the penalties were similar although the maximum financial penalty was less. In Cations there had not been any injury in an incident but the Phenylbutazone in the system was found to have been from a deliberate administration and the person charged initially denied the matter. The JC in that case took a starting point of 12 months disqualification which was reduced to eight months in light of mitigating factors. Mr Morgan submitted that by comparison even allowing for the fact that in the present case there were four horses the end point of a two and a half year disqualification was unsustainable.

20. Reference was also made to the Australian decision of Wolfe (Wolfe v Western Australian Stewards of Thoroughbred Racing appeal, 5 October 2004) from the Western Australian Stewards of Thoroughbred Racing which had been available to the JC and where the period of disqualification involved was 12 months. Mr Dickey argued that this Australian case was of no particular relevance within the New Zealand context, that it was in any event a decision of Stewards only and was decided a number of years ago.

21. Any adjudicative body must endeavour to ensure that there is consistency of approach and that the underlying mischief of the provisions is not overlooked. The later was stressed by Mr Dickey who submitted that the provisions were for the welfare of animals and the safety of people and that there was a need for the industry to be reminded as to how important these factors were and how any breach was to be treated in a serious way. We do not disagree but the response must be proportionate.

22. There was sustained discussion about having decided that the death of the horse and the catastrophic injuries to the jockey were not caused by the offending, whether they could be said to be consequential or even whether they were nonetheless as the JC found aggravating factors. We have difficulty with such semantic dissection.

23. We do not accept that in a situation such as this where there is an admitted breach, anything which happens thereafter (even if in no way related to the breach) is to be seen as a relevant consequence of the breaching or an aggravating factor. It is essential that what is assessed is the actual culpability which is involved. That is what must be reflected in the penalty which is imposed. Such a rigorous exercise may be hard for those close to the injured jockey to appreciate but it must be the legal consequence.

24. We are satisfied that of critical importance in this case in assessing the proper culpability is the fact that there had been a deliberate administration of Phenylbutazone contrary to the stand-down rules. There was evidence which suggests that there was at least on the part of Ms Donaldson a lack of appropriate knowledge as to the requirements. The administration of Phenylbutazone was relatively routine. But the evidence was that the normal process was to administer it post racing or trials and this is not a breach providing a horse was not presented within the stand down period. Here the timing constituted the offences. It was not inadvertent or a one off mistake.

25. We had our attention drawn to the most recent JCA Penalty Guide effective from 1 May 2015 in respect of penalties. The relevant category means the admitted offending falls within the 18 months disqualification guideline for a first offence. There were four (or maybe five horses involved). Accordingly we are of the view that a substantial uplift was necessary. For Mr McDonald (in respect of whom it is accepted the greater degree of culpability existed) that would give an appropriate starting point of two years and six months disqualification. There needed to be an allowance for mitigating factors which on the face of its decision were not addressed by the JC. Mr McDonald had been in the industry for 30 years. He had not offended previously. He pleaded guilty and was cooperative with the authorities even if there was a degree of fudging at an early stage.

26. In all the circumstances an allowance of ten months must be granted which means an end sentence of one year and eight months. In Mr McDonald’s case there was not a challenge to the fine or the costs order and we do not alter them.

27. In respect of Ms Donaldson her experience and background were different. The JC differentiated in our view properly as to her culpability. A starting point of not more than nine months is all that could be justified for her. Providing allowance for mitigating circumstances in her case means an actual period of disqualification could not be greater than six months. The RIU before the JC did not seek a financial penalty for Ms Donaldson. That of course is not conclusive of the point but when no reasons are provided as to why the JC notwithstanding imposed a substantial penalty, that aspect cannot be maintained. There was no challenge before us as to the costs order against her so that will remain but the fine is quashed.

28. Accordingly the appeals against sentence are allowed. The sentences imposed by the JC are quashed. Mr McDonald is fined $7,500, disqualified for one year and eight months from 1 May 2015 and ordered to pay costs of $5,500. Ms Donaldson is disqualified for six months and ordered to pay costs of $5,500.

29. The Appellants have been markedly successful before us and are each entitled to costs of $1,500 to be offset against the sums they owe.

Dated at Wellington this 7th day of August 2015

Hon Sir Bruce Robertson KNZM

Appeals Tribunal Chairman

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