Non Raceday Inquiry RIU v PB Freeman – Decision dated 8 January 2015

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hearing_title: Non Raceday Inquiry RIU v PB Freeman - Decision dated 8 January 2015

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Decision:

BEFORE THE JUDICIAL COMMITTEE

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

BETWEEN Simon Irving, Racecourse Investigator, Racing Integrity Unit

Informant

AND Paul Barry Freeman, Licensed Trainer, New Zealand Greyhound Racing Association

Defendant

Judicial Committee:

Mr Bruce Squire QC, Chairman - Ms Nicki Moffatt, Committee Member

Present were:

Mr Robert Buchanan – Counsel for Mr Freeman

Mr Simon Irving – Racecourse Investigator, Racing Integrity Unit

DECISION OF THE JUDICIAL COMMITTEE

1. Introduction:

1.1 Under an Information laid against him by the Informant on 17 November 2014 Mr Freeman has been charged with a breach of R. 88(1)(o) of the New Zealand Rules of Greyhound Racing (“the Rules”). The rule makes it an offence against the Rules for a person to do a thing or omit to do a thing in relation to a greyhound or greyhound racing which is negligent, dishonest, corrupt, fraudulent or improper or constitutes misconduct. The Information laid against Mr Freeman alleges that on 26 October 2014 at Foxton, as the licensed trainer of a greyhound named Gibbonator he required an official of the Palmerston North Greyhound Club named Georgie Clark to dishonesty backdate by two days the scratching of the greyhound from a race meeting at Palmerston North on 29 October 2014 to enable it to be eligible for another race. Mr Freeman through his Counsel has admitted the breach and it has been agreed between the parties this Committee should deal with the remaining issue of penalty on the basis of an agreed Summary of Facts provided.

1.2 At the time of the offence Mr Freeman was a licensed trainer under the Rules and the President of the Palmerston North Greyhound Club. He was the trainer of the greyhound Gibbonator. As a result of having won a C4 race at Wanganui on 24 October 2014 Gibbonator qualified for the Galaxy Series heats for C5 dogs to be held in Christchurch on 31 October 2014. Gibbonator had also been nominated to run in a C4 race at the Palmerston North Greyhound Club meeting on 29 October 2014. Following the race meeting at Wanganui on Friday 24 October 2014 Mr Freeman noticed Gibbonator had an injury to its right carpus which he treated over the following days at his kennels in Foxton.

1.3 Ms Georgie Clark was the Secretary of the Palmerston North Greyhound Club. She was also employed part-time at Mr Freeman’s kennels. Part of her duties as the Secretary of the Greyhound Club was to process race scratchings. Her practice when notified of the scratching of a greyhound from a race was to record the time and date of notification on a fields printout following which she advised the Stewards of the scratching on raceday by marking their books with the date she was advised of the scratching.

1.4 On the afternoon of Sunday 26 October 2014 Ms Clark was present at Mr Freeman’s kennels in Foxton. At that time Mr Freeman told Miss Clark that Gibbonator needed to be scratched from the race it was scheduled to run in at Palmerston North the following Wednesday 29 October and asked Ms Clark to backdate the notification of the scratching to the preceding Friday. Ms Clark agreed and backdated the scratching of Gibbonator to the preceding Friday in accordance with her practice as to the recording of scratchings as outlined above. The result of the backdating was that it allowed Gibbonator to complete a seven day injury stand-down period before participating in the race at Christchurch, the following Friday 31 October 2014.

1.5 Subsequently on Tuesday 28 October Gibbonator was examined by a vet at Mr Freeman’s kennels and was found to be suffering from carpitis in its right foreleg. As a result the vet issued a seven day stand-down certificate.

1.6 At the Palmerston North meeting on Wednesday 29 October the Stewards were notified by Ms Clark that the scratching of Gibbonator had been received the preceding Friday by entries in their race books. For reasons which do not need to be recorded an inquiry was subsequently instituted into the scratching of Gibbonator in the course of which Ms Clark was spoken to. After initially telling the RIU Steward who spoke to her that Mr Freeman had advised her of the scratching of Gibbonator late on the preceding Friday night when she had assisted him to unload the dog after returning from the Wanganui meeting, Ms Clark later, when re-interviewed, advised that Mr Freeman had asked her to backdate the scratching of Gibbonator which she had done.

1.7 As events transpired Mr Freeman took Gibbonator to Christchurch to race there on 31 October 2014 but scratched the dog following a further veterinary examination in which it was found the dog was still suffering pain in its right carpus. On this occasion the vet who examined the dog issued a ten day stand-down certificate. On his return from Christchurch Mr Freeman was interviewed about the scratching of Gibbonator from the race meeting at Palmerston North on 29 October. He was cooperative during the interview and admitted he had asked Ms Clark to backdate the scratching saying he was disappointed and embarrassed by his actions which he explained as having “pushed his luck”.

2. Submissions of the Parties:

2.1 In his submissions on behalf of Mr Freeman, Mr Buchanan said that it was not until he arrived home from the Wanganui meeting on Friday 24 October and was unloading the dogs he had taken to the race meeting that day that Mr Freeman noticed the injury to Gibbonator. Mr Freeman thought the injury would result in a stand-down for up to seven days meaning he would have to scratch it from running at Palmerston North the following Wednesday. However because of the late hour and the fact he was tired and had no opportunity to assess the extent of the injury to the dog more fully, he decided not to contact Ms Clark then to notify of the scratching of Gibbonator from the race meeting at Palmerston North the following Wednesday. Mr Buchanan said that Mr Freeman did notify Ms Clark of the scratching the following Sunday when it, and the issue of backdating the scratching, arose in the course of what he described as an “informal conversation”. He conceded that Mr Freeman was keen for Gibbonator to race in Christchurch the following Friday but was aware it would not be possible for the dog to race at Palmerston North the following Wednesday.

2.2 Mr Buchanan submitted the events outlined involved three errors on Mr Freeman’s part:

• despite the lateness of the hour and what Mr Buchanan described as the “impracticability” of doing so he should have notified the scratching of Gibbonator from the Palmerston North event on the Friday evening.

• he should not have raised the backdating of the scratching with Ms Clark even casually.

• he should not have acted on the backdating of the scratching.

To that extent, Mr Buchanan accepted Mr Freeman acted improperly and that his actions could have been perceived as dishonest. He denied that Mr Freeman had been corrupt or fraudulent and that he had obtained any benefit from his actions beyond preserving the opportunity for Gibbonator to run at the Christchurch meeting where quite significant stake money was on offer. Mr Buchanan described Mr Freeman’s conduct as not premeditated and being brought about by what he referred to as the impracticability of complying with the scratching procedure when the need to scratch Gibbonator arose. He further submitted Mr Freeman could not be held responsible for Ms Clark’s actions, no breach of the Rules of Greyhound Racing was involved in relation to the scratching of the dog and there was no evidence Mr Freeman had endeavoured to influence either of the vets that had examined Gibbonator and issued the stand-down certificates.

2.3 Mr Buchanan referred also to the fact that following a long involvement in the Greyhound Racing Industry Mr Freeman has faced only one previous charge in 2007 for a minor infraction for which he was fined the sum of $100 and ordered to pay costs. He noted further that Mr Freeman cooperated with the investigation and voluntarily suspended his license pending the result of this proceeding which he said had impacted on Mr Freeman’s business in a way which had resulted in what he referred to as a “significant cost” and implications for its management. Details of the costs involved and the particular management implications referred to were not provided.

2.4 In his submissions Mr Irving on behalf of the RIU properly acknowledged that Mr Freeman had been cooperative with the investigation and was remorseful for his actions. He confirmed also that Mr Freeman had made no financial gain from what he had done. He noted however that the Racing Industry relies heavily on the honesty of its participants and in an as much as Mr Freeman had admitted doing a dishonest act his conduct should be viewed seriously and the penalty imposed should properly reflect that and act as a deterrent for similar offending by others. Mr Irving made the point that notwithstanding the lateness of the hour Mr Freeman could have notified Ms Clark of the scratching by text or email on the Friday evening when Mr Freeman first observed Gibbonator was suffering from injury and suggested that Mr Freeman may have been motivated in scratching Gibbonator from the Palmerston North meeting by the fact greater stake money was on offer at the Christchurch meeting two days later. He submitted that it was in the public interest that a condign penalty be imposed in this case to mark the unacceptability of dishonest conduct of this kind in the Racing Industry and to serve as a deterrent to others for similar offending.

3. Discussion:

3.1 The maximum penalty for a breach of R. 88(1)(o) is a fine not exceeding $10,000 for any one offence, and/or suspension and/or disqualification and/or a warning off (Rules 89.1; 92.11). It appears there is no decision in Greyhound Racing in either Australia or New Zealand involving similar offending or offending of a broadly similar kind from which it is possible to draw a tariff for the various kinds of offences encompassed within R. 88 which lists an extensive range of offending at different levels of culpability. Rule 88(1)(o) itself covers offending which ranges from negligence at one end of the spectrum to fraudulent or corrupt behaviour at the other.

3.2 In this case the charge as framed focuses on dishonest conduct; that is the dishonest backdating of the scratching of Gibbonator from the Palmerston North race meeting at the request of Mr Freeman. Mr Buchanan in his submissions maintained that the backdating was raised informally with Ms Clark in a casual setting and without coercion. For that reason he said Mr Freeman could not be held responsible for Ms Clark’s actions. That submission is true only up to a point. The plain fact of the matter is that Ms Clark herself had no reason to backdate the scratching of Gibbonator and clearly would not have done so had the matter not been raised by Mr Freeman. For that reason we do not think that Mr Freeman can properly disassociate himself from Ms Clark’s actions in the fashion suggested by Mr Buchanan.

3.3 In assessing penalty in this case the starting point in our view is the nature of the culpability involved in the charge. Despite the submission that Mr Freeman’s actions “… could be perceived to be dishonest”, and the reservation implicit in that concession, we are quite clear that the backdating of the scratching was suggested to Ms Clark by Mr Freeman, and carried into effect by her, for a dishonest purpose. That was to preserve the opportunity for Gibbonator to run at the Christchurch meeting on 31 October 2014, an opportunity which, Mr Freeman clearly recognised was likely to be lost once the scratching was notified later than the preceding Friday. Whether Mr Freeman was motivated to act as he did because of the stakes on offer at the Christchurch meeting or not is perhaps a moot point given that Gibbonator had qualified to race in the Galaxy series in any event, as Mr Buchanan has pointed out, but the fact remains that in as much as the backdating of the scratching of Gibbonator preserved its opportunity to run in the Galaxy series it also at the same time preserved its opportunity to win the prize money on offer. We think it unlikely that Mr Freeman would have acted as he did simply to enable Gibbonator to run at the Christchurch meeting without regard to the stake money on offer.

3.4 Mr Irving has rightly made the point in his submissions that the Racing Industry relies on the honesty of its participants. That reliance extends to a myriad of circumstances and situations across all three racing codes and is no less applicable to Greyhound Racing than to the other racing codes. Where the conduct of the participant concerned involves dishonesty the penalty imposed must, in our view, reflect not only its unacceptability per se but also at the same time mark its unacceptability in terms of the fundamental reliance the code has on the honesty of its participants. That said the penalty must also be proportionate to the nature of the dishonesty involved which may also require consideration of its consequences.

3.5 Approaching the matter in that way we think that in terms of the maximum penalty prescribed the starting point for an offence under the Rules where dishonesty is involved is disqualification. In this case having regard to the nature of the dishonest conduct involved and taking some guidance from the other, some admittedly quite different, cases of dishonest conduct in the codes to which we were referred, we fix the period of disqualification at three months. There are, in our view, no aspects of the offending beyond what is implicit in the offending itself which we would regard as aggravating factors requiring an uplift from the starting point of three months disqualification. We do not regard Mr Freeman’s previous conviction for a minor offence in 2007 as of any consequence in that regard.

3.6 There are on the other hand mitigating factors of some significance which need to be brought to account. The first is the fact that Mr Freeman has pleaded guilty to the charge brought against him and was fully cooperative during the course of the investigation into the offending by the RIU. Further, in his submissions, Mr Irving has noted that Mr Freeman was remorseful for his actions and had made no financial gain from the offending. Secondly Mr Freeman voluntarily handed in his trainer’s license during the course of the investigation by the RIU which, according to Mr Buchanan, has resulted in some “economic loss”. The extent of the loss however has not been advised. Thirdly we are advised, and accept, that Mr Freeman’s standing and reputation within the Greyhound Racing community will have been adversely affected to some extent by the fact he has been charged with and convicted of the offence to which this Decision relates. We think it is appropriate to give some weight, but not much, to that factor also. Giving effect to those matters in the round we think that a discount of one half from our starting point can properly be allowed resulting in disqualification for a period of six weeks, which we think can be rounded off at one month with the addition of a fine.

3.7 Mr Irving has informed us that the RIU does not seek costs but Mr Freeman will be required to meet the costs of the Judicial Control Authority in the usual way.

4. Result:

4.1 In the result, in terms of R. 92.11 we find the offence with which Mr Freeman has been charged and to which he has pleaded guilty duly proved. He will be disqualified in terms of R. 89.1 for a period of one month as from the date of this Decision and fined the sum of $300. In addition he is ordered to pay the sum of $250 in costs to the Judicial Control Authority.

DATED at Wellington this 8th day of January 2015

Bruce Squire QC                               Nicki Moffatt

Chairman                                         Committee Member

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