Non Raceday Inquiry RIU v A J Pyers – Decision of Judicial Committee as to Penalty and Costs dated 19 June 2013

hearingid: 7d1d5f363e72cc1b506504af2deec900

informantnumber: A2853

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decisiondate: 24/06/2013

hearing_title: Non Raceday Inquiry RIU v A J Pyers - Decision of Judicial Committee as to Penalty and Costs dated 19 June 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE JUDICIAL CONTROL AUTHORITY

AND IN THE MATTER of the NZ Rules of Harness Racing

BETWEEN: THE RACING INTEGRITY UNIT ON BEHALF OF HARNESS RACING NEW ZEALAND - (Mr R Carmichael – Chief Race Course Inspector appearing)

Informant

AND MR ALLEN JOHN PYERS – LICENCED TO TRAIN AND OPEN HORSEMAN

Respondent

Information No: A2853

Judicial Committee: BJ Scott, Chairman - JN Holloway, Committee Member

Present: Mr R Carmichael – Chief Race Course Inspector – By Written Submissions

Mr AJ Pyers – Respondent – By Written Submissions

Mr AJ Ryan – Counsel for Mr Pyers – By Written Submissions

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY AND COSTS

1 Introduction:

1.1 At the conclusion of our substantive decision in this matter we requested that the parties make written submissions as to penalty and costs. This was on the basis that the Informant’s submissions were to be presented first, followed by the Defendants.

1.2 The written submissions have now been received from each party.

2 Submissions by Mr Carmichael:

2.1 Mr Carmichael referred to the penalty provisions contained in Rule 1003(1). That Rule was set out in full in our substantive decision.

2.2 Mr Carmichael then referred to the reported case of NZTR and T C (2006) where it was stated:

“Most cases of misconduct involving licensed persons were unpremeditated, they were a direct reaction to an action they felt aggrieved about, often including language of an obscene or offensive nature, and all is usually as a result of race day pressure”.

2.3 Mr Carmichael submitted that the rationale of the Misconduct Rule is quite clear in that there is a high expectation that license holders will conduct themselves in a professional and responsible manner, particularly when in public situations.

2.4 Mr Carmichael’s further submission was that there were two quite separate incidents of misconduct committed by Mr Pyers (indeed there were two separate charges) and he submitted that neither matter fell within the general categorisation set out above.

2.5 Mr Carmichael then further submitted that in respect to Information number A2853 that this charge was more serious than the first charge. He said it was an orchestrated campaign against the Informant and in respect to that he submitted that the Committee should take account of the most recent serious case involving misconduct which was NZTR v R McA. Mr Carmichael quoted from that decision and one of those extracts was:

“We take as our starting point in relation to the charge concerning Mr S, disqualification for a period of five months together with a fine of $2,500.00”.

2.6 Mr Carmichael also submitted an extract from the NZTR v C decision as follows:

“It is not just a matter of the language used, which Mr Ryan described as colourful, it is the offensive way in which it was conveyed and the premeditated nature of the communication that gives rise to concern and for which the Defendant must take responsibility”.

2.7 It is therefore the Informant’s submission, using the starting point referred to in McA that period of disqualification with the starting point at 5 months be imposed, or, as in NZTR v C, any fine imposed should reflect that unacceptable and abusive conduct toward officials, and others, should not be tolerated.

2.8 It is submitted that in this case it is appropriate for costs to be awarded to the JCA.

3. Submissions by Mr Ryan:

3.1 Mr Ryan in his submissions stated that Mr Pyers cooperated fully with Mr Carmichael in relation to the complaint of misconduct at the Morrinsville workouts. Mr Ryan also made submissions about the service of the Information.

3.2 Mr Ryan then made submissions about Mr Pyers chronic back problem and the medication that he requires to take at regular daily intervals. This was part of the evidence before the Committee at the Substantive Hearing. Mr Ryan also submitted that text messages on the 11th and 12th of January 2013 were within the proximity of the consumption of medication by Mr Pyers and he submitted that there was a distinct possibility that the medication had a deleterious affect on Mr Pyers behaviour.

3.3 Mr Ryan then dealt with Mr Carmichael’s submission that the second Information was more serious and that it was an orchestrated campaign against the Informant. Mr Ryan submitted further that that was quite incorrect when looking at text messages on the 11th and 12th of January and then a further one of the 21st of January 2013.

3.4 In respect to submissions as to penalty Mr Ryan submits that the McA case was in a totally different league from the actions of Mr Pyers which were the subject of the charges against him.

3.5 Mr Ryan also made submissions as to the fact that Mr Pyers was no longer able to train on the Morrinsville track as a result of action taken by the Morrinsville Club Committee and he submitted that that is a de-facto suspension.

3.6 Mr Ryan referred the Committee to the recent decision in RIU v M. He advised the Committee that there were originally 33 Informations laid but that the RIU agreed to accept guilty pleas on 3 clearly representative charges and fines of $350.00 were imposed on each of those charges. He pointed out that the RIU in that case submitted that a fine of $200.00 was appropriate on each of those charges.

3.7 Mr Ryan submitted that disqualification was not appropriate.

4. Reasons for Penalty:

4.1 The Committee has considered the submissions of both parties and has also taken into account the findings that it made in its decision.

4.2 Mr Carmichael tells us that the second charge relating to the text and telephone messages to him is the more serious of the two. He relies on the decision in NZTR v McA and also he refers to NZTR and C.

4.3 In regard to the decision in NZTR v McA we have to say that we do not regard the penalty imposed in that case as having precedent value in this case. We propose to treat NZTR v McA as a case confined to its own facts.

4.4 The most recent decision is that of RIU v M and there is a major difference between that case and the charge against Mr Pyers. In M the misconduct related to abuse in the public domain whereas in the present case the abuse was between Mr Pyers and the Informant. We do not, of course, down play the seriousness of abuse against an Official but we need to draw the distinction between public domain and private domain.

4.5 It is of concern to us that in its submissions to the Committee in M the RIU submitted that the penalty be $200.00 per charge but yet in the within case the submission is that a period of 5 months disqualification be imposed on Mr Pyers.

4.6 We have drawn a distinction between the two cases as one being in the public domain and the other being in the private domain and we cannot accept that misconduct in the private domain should attract a greater penalty than was asked for misconduct in the public domain.

4.7 It is our view that this charge can be appropriately dealt with by way of a fine.

sumissionsforpenalty:

reasonsforpenalty:

penalty:

5.1 This Committee imposes a fine of $450.00 on Mr Pyers.

5.2 There are no orders as to costs.

B.J. Scott            J.N. Holloway
Chairman           Committee Member

19 June 2013

hearing_type: Non-race day

Rules: 303(2)

Informant: The Racing Integrity Unit on behalf of Harness Racing New Zealand - Mr R Carmichael - Chief Race Course Inspector appearing

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PersonPresent: Mr A J Ryan - Counsel for Mr Pyers - By Written Submissions, Mr R Carmichael - Chief Race Course Inspector - By Written Submissions, Mr A J Pyers - Respondent - By Written Submissions

Respondent: Mr A J Pyers - Licensed to Train and Open Horseman

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