Appeal BJ Craik v RIU – Decision dated 20 July 2015

hearingid: 6c001ced773dd5d4f3fa5768dc6e048a

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 20/07/2015

hearing_title: Appeal BJ Craik v RIU - Decision dated 20 July 2015

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

BEFORE AN APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL AUTHORITY

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association (Incorporated)

BETWEEN BARBARA J CRAIK

Appellant

AND RACING INTEGRITY UNIT

Respondent

Tribunal: R G McKenzie, Chairman - N M Moffatt, Tribunal Member

Mr B D F Craik, Lay Advocate for the Appellant

Mr R L Neal, Co-Chief Stipendiary Steward, for the Respondent

Date of Decision: 20 July 2015

DECISION OF APPEALS TRIBUNAL

Background

[1] In a written decision dated 5th May 2015, a Judicial Committee, following a defended hearing, found proved a charge that the Appellant, on the 8th day of February 2015, at a Race Meeting conducted by the Auckland Greyhound Racing Club at Manukau Stadium, as a Registered Handler committed a breach of Rule 68.1 of the Rules of Greyhound Racing when she presented the greyhound DON DRAPER at the inspection area for kennelling in Race 5 when the greyhound engaged to compete in Race 5 was LUCKY MAN.

[2] After hearing penalty submissions from both parties, the Judicial Committee, in a written decision dated 26th May 2015, imposed a fine of $450 on the Appellant and ordered that she pay costs in the sum of $350 to the Judicial Control Authority.

[3] The Appellant has appealed against the finding of the Judicial Committee on the grounds that, as set out in her Notice of Appeal, “Interpretation of Rules 68.1, 68.2, 68.6 and 68.7. “Errors made in judicial findings” and “because Mrs Craik is innocent and the fault is with officials”.

[4] It was agreed by the parties and by this Tribunal that this appeal should proceed “on the papers” and both parties have now filed submissions in writing.

The Rules
[5] The Rules referred to in the Notice of Appeal provide as follows under the heading of “Presentation for Racing”:

68.1 The Handler of a Greyhound competing at a Meeting shall present the correct Greyhound to the Stewards at or before the time specified in Rule 68.2

68.2 Unless otherwise specified, a Greyhound competing at a Meeting conducted by a Club shall be in the hands of the Stewards not later than sixty (60) minutes before the advertised starting time of the first Race of that Meeting.

68.6 Where the Handler fails to produce the Greyhound at or before the time specified in Rule 68.2, the Handler shall be guilty of an offence.

68.7 A Greyhound not produced in accordance with Rule 68.2 shall not be allowed to compete in the Race for which it has been drawn and shall be suspended for 28 days commencing on the date on which the failure to comply with Rule 68.2 occurred, provided however that the Steward or Board may revoke or vary such Penalty.

The Findings of the Judicial Committee

[6] The Judicial Committee found it to be “compelling and clear” that DON DRAPER was presented for Race 5 when it should have been LUCKY MAN. The Committee acknowledged that there had been a problem with the identification process in that the microchip scanner was not operating for Race 5, but noted that there were other forms of identification.

[7] The Committee went on to find that this “error in the checking process” did not absolve Mrs Craik from her responsibility to present the correct greyhound to race. The Committee noted that Mrs Craik had clearly acknowledged that she had presented DON DRAPER for Race 5 and that DON DRAPER had competed in Race 5 as LUCKY MAN. DON DRAPER was subsequently scratched from Race 8, having raced earlier as LUCKY MAN in Race 5.

[8] The Judicial Committee heard lengthy evidence as to how this situation came about but was clear in its finding that DON DRAPER, instead of LUCKY MAN, had been presented to the raceday officials as the greyhound that was to race in Race 5 at the meeting. A copy of the transcript of the hearing before the Judicial Committee was made available to this Tribunal.

[9] This Tribunal acknowledges that the Judicial Committee heard all of the evidence of the parties and their witnesses and had the advantage of seeing the witnesses in person.

Submissions of the Appellant

[10] Mr B D F Craik, Lay Advocate for the Appellant, made lengthy submissions on behalf of the Appellant. We do not intend to deal with each of those submissions as many of them were irrelevant and/or of little merit.

[11] Essentially, his submission was that the fault was not with the Appellant but, rather, with the checking procedure on raceday which was, he submits, on this occasion flawed. His submissions dealt, at some length, with what he considered to be the correct procedure and, in particular, he made the point that there had been no identification by means of microchip. He submitted that Mrs Craik could not be held responsible for “kennel official procedure”.

Submissions of the Respondent

[12] The Respondent summarised its submissions as follows:

• Rule 68.1 places a strict duty on a handler to present the correct dog to the Stewards
• That the Appellant presented the dog DON DRAPER to the inspection area
• That the Appellant was present during the kennelling process and physically kennelled the dog DON DRAPER for Race 5
• That DON DRAPER competed in Race 5 instead of LUCKY MAN
• That the Appellant committed a breach of Rule 68.1 by presenting the incorrect dog to the Stewards at the presentation area.

Reasons for Decision

[13] The predecessor of the current Rule 68.1 provided as follows:

The Handler of a Greyhound competing at a Meeting shall produce the Greyhound to the Stewards at or before the time specified in Rule 68.2.

[14] Until recently, cases of presenting the incorrect greyhound were dealt with by charges under the then Rule 88.1.o (now Rule 87.1.o) alleging doing a thing or omitting to do a thing in relation to a Greyhound or Greyhound Racing which was negligent.

[15] Mr Neal has told us, in his submissions, that Rule 68.1 has been recently amended (as from 1 February 2015) by insertion of the word “correct” to create a specific offence of not presenting the correct greyhound or, put another way, presenting an incorrect greyhound. That amendment to the Rules was made so that charges under Rule 88.1.o could be limited to more serious breaches involving negligence, dishonesty, corruption, fraud or impropriety. We imagine that this was the intention of the drafters of the original Rule 88.1.o. Presenting the incorrect greyhound was seen as not being appropriate to be included under any of those categories.

[16] The task of this Tribunal, in this case, does not just involve deciding what the words of the Rule mean – it involves deciding how they should be applied to the facts of this case. We have no difficulty in deciding that the literal rule of interpretation should be the first rule applied - that is to say, the words of the Rule are to be given their natural or ordinary meaning.

[17] Adopting that approach, the Tribunal has no difficulty in finding that the Rule, clearly, requires the handler of a greyhound, on presenting the animal for kennelling, to present the “correct” greyhound. The intention of the Rule, we believe, is to cover the precise situation as in this case. The obligation placed on a handler under Rule 68.1 is clear and explicit and is one, we believe, of strict liability.

[18] A number of processes are in place on a raceday to detect if an incorrect dog is presented and, as acknowledged in the submissions presented on behalf of the Appellant, this happens as “a regular occurrence”. Mr Craik said on the Appellant’s behalf that, in his 44 years of training, he has seen this occur “hundreds of times”. This statement, while possibly an exaggeration, supports the proposition that the checking processes are effective but, like all such processes involving a human element, will never be completely foolproof. In this case, the microchip scanner was, for some reason, not operating. Had it been operating then the mistake may have been detected and this was perhaps unfortunate for the Appellant. However, that fact did not relieve the Appellant of the strict obligation upon her to ensure that the correct greyhound was presented.

[19] Mr Craik, in his submissions, states that:

We all accept that DON DRAPER raced as LUCKY MAN but it was not a consequence of Mrs Craik presenting the wrong dog, but one of Officials not doing their procedures correctly.

This is a clear acceptance that the Appellant presented the incorrect greyhound, as found by the Judicial Committee.

[20] The grounds of this appeal, we believe, can be simply dealt with. It was clearly established to the satisfaction of the Judicial Committee that the Appellant presented DON DRAPER as LUCKY MAN for Race 5. The “correct” greyhound was not presented as required by Rule 68.1. We accept that this was the case and, therefore, we can see no good reason to impugn that factual finding of the Judicial Committee in its thorough and detailed decision, it having heard all of the evidence.

[21] Furthermore, while there are checking processes in place, which in the vast majority of cases are effective in detecting mix-ups, the ultimate responsibility is on the handler to ensure that the correct greyhound is presented. The Rule could not be clearer. It is no defence to a charge of presenting an incorrect greyhound to plead that the error should have been detected by the officials. That is the basis of the appeal in this case. However, the elements of the offence are complete at the first moment when the incorrect greyhound is first presented to the Stewards/Officials - prior to the various checking procedures taking place.

[22] The Appellant, in her Notice of Appeal, sought “interpretation of Rules 68.1, 68.2, 68.6 and 68.7”. We believe that we have dealt fully with Rule 68.1. That is a “stand alone” Rule, except that it refers to the requirement in Rule 68.2 that a greyhound must be “in the hands of the Stewards not later than sixty (60) minutes before the advertised starting time of the first Race of that meeting”. Rule 68.6 creates an offence by the handler if the time requirement in Rule 68.2 is not observed. Rule 68.7 provides a penalty of a 28 days suspension for any greyhound not produced in accordance with Rule 68.2. In the Tribunal’s view, there is no connection between Rule 68.1, under which the charge has been brought in this case, and those Rules 68.6 and 68.7.

Decision

[23] For those reasons, the decision of the Judicial Committee appealed from is upheld and the appeal is dismissed.

[24] The appeal was against finding only and not penalty and, therefore, we were not required to consider the appropriateness of the penalty imposed by the Judicial Committee.

Costs

[25] The matter of costs is reserved. The Respondent is invited to file submissions in relation to costs within 7 days of the date of this decision. Submissions in response are to be filed by the Appellant within 7 days of the receipt of the Respondent’s submissions.

R G McKenzie      N M Moffatt

CHAIRMAN         TRIBUNAL MEMBER

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: