Appeal SP Clark v RIU – Decision dated 16 September 2014

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decisiondate: 13/09/2014

hearing_title: Appeal SP Clark v RIU - Decision dated 16 September 2014

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY

HELD AT TE RAPA RACE COURSE HAMILTON

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN Mr STEPHEN PAUL CLARK of Maramarua, Licenced Trainer

Appellant

AND RACING INTEGRITY UNIT (RIU)

Mr S MULCAY - Stipendiary Steward appearing

Respondent

Appeals Tribunal: Mr BJ Scott, Chairman; Mr AJ Dooley, Member of Tribunal

Appearing: The Appellant in person, Mr S Mulcay for the respondent

Also Present: Mr M Austin, Stipendiary Steward, Ms P Kinsey, Trainee Stipendiary Steward

DECISION

[1] Mr Clark has appealed against the decision of the Stipendiary Stewards at Manukau Raceway on the 31st of August 2014 to stand down the Dog, “Maramarua Jack” for twenty-eight (28) days pursuant to r 80.1(b).

[2] Rule 80.1(b) provides: “Where a Greyhound fails to pursue the lure in a race, the Stewards may impose the following periods of suspension: (a) in the case of a first offence, twenty-eight (28) days and until the completion of a satisfactory trial.”

[3] Mr Clark in his Notice of Appeal was also appealing against the process undertaken by the Stipendiary Stewards in dealing with the charge and arriving at their decision.

[4] It was appropriate that Mr Clark as the Appellant should present his case first.

The Appellant’s Case -

[5] “Maramarua Jack” was number 8 and started from Box 8 in Race 12, the Trophies Plus Sprint 318 metres. The dog finished second. This was at the Auckland Greyhound Racing Club’s meeting at Manukau on the 28th of August 2014.

[6] Mr Clark said that he was subsequently called into a hearing by the Stipendiary Stewards and Ms P Kinsey was in charge of the meeting. He said that Ms Kinsey told him that the Stewards were looking at his dog for failing to pursue and he was shown the film of the Race (although this did not include a head-on view) and he said that he told Ms Kinsey that he didn’t agree with her findings. He then said that Ms Kinsey asked him if he would agree to his dog trialling with one blinker, not two, and he said “no”. He then told the Tribunal that as far as he was concerned the hearing had been concluded and there was no penalty as far as his dog was concerned and that was it.

[7] In response to a question from the Tribunal, Mr Clark said that as far as he was concerned they had watched the film, they had talked about his dog, but it hadn’t been charged and he said that Ms Kinsey had told him that the Stewards had two choices, though she thought they might not do anything about it.

[8] Mr Clark then said that at about 10.00 pm that evening, Ms Kinsey came to him and said that the Stewards had 2 choices – either to charge the dog or leave it. He understood her to say that they would leave it.

[9] Mr Clark then said that at the Auckland Greyhound Racing Club meeting on the 31st of August 2014 the Stipendiary Steward in charge of that meeting was Mr Mike Austin. He said that Mr Austin advised him that the hearing held on the 28th of August was being reconvened at the meeting on the 31st August and Mr Austin was dealing with that. Mr Clark pointed out that Mr Austin was not present at the Race Day on 28th of August.

[10] Mr Clark said that there was an interview with Mr Austin and he also showed Mr Clark the film and Mr Clark said that he did not agree with the charge being made out by the Stewards. He pointed to the fact that his dog was wearing blinkers and that rather than turning his head, he said that his dog wanted to go to the rail because he couldn’t see the dog beside him.

[11] Mr Clark said that Mr Austin told him that the Stewards would be proceeding with the charge of Failing to Pursue and that he would complete the paperwork and get it to Mr Clark during the meeting. This did not happen and it was emailed to Mr Clark two days after the meeting.

[12] Mr Clark said that he was appealing the process and also defending his dog.

The Respondent’s Case -

[13] Mr Mulcay said that the RIU refuted the claims of Mr Clark as to the steps taken on the 28th of August 2014.

He then asked Ms Kinsey as the Steward in charge of the meeting, to give evidence.

P. Kinsey Evidence -

[14] Ms Kinsey advised that she was a trainee Stipendiary Steward with three years’ experience. She said that she was not the most experienced Steward but she was confident in her ability to read a race. She also told us that she had chaired 15-20 meetings and at the meeting on the 28th August 2014 she was assisted Stipendiary Steward, Mr B van Kan.

[15] Ms Kinsey said that following Race 12, she ordered a vet check for “Maramarua Jack” and it showed that the dog had no abnormalities.

[16] Ms Kinsey said she then spoke to Mr van Kan and they asked Mr Clark to come to see them.

[17] Ms Kinsey said that Mr Clark was argumentative and she queried the reason for his dog, “Maramarua Jack”, wearing blinkers. Ms Kinsey said that “Maramarua Jack” had eased and turned its head towards another runner and Mr Clark disputed this.

[18] Ms Kinsey said that she did not offer Mr Clark the option of a trial with one blinker.

[19] Ms Kinsey then said that after the last race she went to speak to Mr Clark in the bar and she told him that they were doing nothing further on the day. She said that she told Mr Clark that they had two options which were either to continue with the charge against the dog, or do nothing further and that she would let him know.

[20] Ms Kinsey said that she subsequently telephoned Mr Clark and left a voice message at 10.32pm to the effect that the hearing had been adjourned.

[21] Ms Kinsey then told the Tribunal the next day, the 29th August 2014, that she sought the assistance of more experienced Stipendiary Stewards, being co-chief Stipendiary Steward, Mr R Neal and Stipendiary Stewards, Mr Mike Austin and Mr G Whiterod.

[22] Ms Kinsey said that she also was in contact with Mr M Godber, the General Manager of the RIU, and she explained the situation to him because she had not been involved in the re-opening of a hearing before.

[23] The result of all of this was that Ms Kinsey was given permission pursuant to r 92.2(a) to proceed with an Information against “Maramarua Jack” for a breach of r 80.1(b).

[24] The Tribunal queried the need for authority from Mr Godber if the Stewards were dealing with a reconvened hearing from one meeting to another. The answer given was that it was thought prudent to obtain the authority of Mr Godber.

M Austin Evidence -

[25] Mr Austin said that on the 29th of August he received an email from Ms Kinsey regarding an issue the night before at the AGRC meeting. She had asked if he could review the footage of Race 12 of that meeting. He said he was working at Whanganui that day and he did review the footage and that, in his opinion, Ms Kinsey was correct in her view that “Maramarua Jack” had failed to pursue.

[26] Mr Austin said that he was present at the Manukau Raceway on the 31st of August 2014 and that he interviewed Mr Clark about the performance of “Maramarua Jack” at the meeting on the 28th of August. Mr Austin produced a transcript of that interview. In it he said to Mr Clark that he had reviewed the film of the race several times, and he was going to run through it and give Mr Clark his interpretation. He said that he intended to lay a charge of failing to pursue by “Maramarua Jack” and he said he would play the film and give Mr Clark his reasons.

[27] The transcript showed that Mr Austin told Mr Clark that he would play the film and his interpretation was that “Maramarua Jack” turned his head in shortly before turning for home, and down the home straight he turned his head in towards a dog on the inner on a couple of occasions. He said that there was one point where he believed the dog had turned its head in, however, he acknowledged that the film was not 100% clear in that area.

[28] Mr Austin said that Mr Clark did not agree at all with Mr Austin’s interpretation.

[29] Mr Austin said that, as he understood it, the enquiry was opened and adjourned on 28th August but Mr Clark said that when he was about to leave the track, Ms Kinsey said “we’ll leave it as it was inconclusive”. He said that he later received a recorded phone message saying that Ms Kinsey had changed her mind.

[30] Mr Austin said that Mr Clark repeated that he did not agree with Mr Austin’s interpretation and that he wanted the JCA to deal with this matter. Mr Austin said that he would complete the paper work and get it to Mr Clark during the meeting. He said that he did complete the Information and he gave it to his assistant, Mr van Kan, but for some reason it was not served on Mr Clark. Mr Austin said there was 18 minutes between Races at that Meeting and he did not realise until later that it had not been served on Mr Clark.

[31] Mr Austin said that he emailed it to Mr Clark 2 days later.

[32] Mr Austin also said that the definition of “failing to pursue” means, “the action of the Greyhound voluntarily turning the head without making contact with another Greyhound, or voluntarily easing up, or stopping during a Race while free of interference”.

[33] Mr Austin also said that “Maramarua Jack” was vetted on Race Day and no abnormalities were found. He said that the Rules provide that the Trainer has 72 hours to have the dog re-vetted and he said that in fairness to Mr Clark, because they were outside that 72 hour period, he would give him a further period of time to have the dog re-vetted. Mr Clark had apparently said no to him because it was outside the Rules.

[34] In answer to question, Mr Austin said that some dogs race in blinkers. He said that trainers can use them at trials and on raceday and he said that during a race they are there for a reason, which was to help a dog with its racing manners. He said also, that the Stewards did not give any dispensation for special gear and that included blinkers.

Film Evidence -

[35] The films of the race were then shown. There are two views, being a view of the dogs racing from the starting boxes towards and then away from the camera; and one that we would call the ‘side on’ or ‘entertainment view’.

Ms Kinsey said that there was no suitable head-on film and, because it was a night meeting, any head-on film would not be very clear.

[36] Mr Mulcay said that the Stewards were 100% certain that the actions that “Maramarua Jack” was accused of had occurred. He pointed to the fact that the standard of proof in hearings such as this was on the balance of probabilities and he said that it was more probable than not, that “Maramarua Jack” had turned its head more than once, and that it had failed to pursue.

[37] Mr Austin spoke to the film and he said that on the home turn, the 5 and the 8 dogs bumped. He then used the side on view to show the dogs running to the finish and he said that “Maramarua Jack” was trying to run in onto the 3 dog and that it looked at the other dog.

Mr Austin said that there was no head-on coverage.

[38] Mr Austin then used the back- straight film to show contact between the 5 dog and the 8 dog and he said that in the run home the 8 dog was trying to get over to the rail and was not pursuing. He said the blinkers are not relevant.

[39] Mr Mulcay intervened at that stage and said, using a Harness term, the 8 dog goes up to possibly go past the 3 dog, but that it has pulled up and waited for the other dog.

[40] Mr Austin said that “Maramarua Jack” had turned its head towards the dog inside and that it had lost concentration over the latter stages.

[41] The Tribunal then asked Mr Austin if it was really a question of the 8 dog running out of puff. The dog had started from the outside box and had been wide throughout the race and was bumped wide on the home-turn and it may have run out of puff. Mr Austin did not agree with that and said that dogs need to pursue to the end. He also pointed out that “Maramarua Jack” had had an unimpeded run.

[42] In answer to further questions from the Tribunal, Mr Austin endeavoured to show (using the side-on film) where “Maramarua Jack” had turned its head. It is fair to say that he had some difficulty in convincing the Tribunal of this and he asked for the particular incident to be re-shown several times. Mr Austin was clear in the view that “Maramarua Jack” had turned its head in the straight rather than having just run inwards but he had some difficulty in pin pointing the incident for the Tribunal. The film evidence in this regard was inconclusive and as far as the Tribunal is concerned, the Stipendiary Stewards at Manukau are badly let down by the lack of a head-on film.

[43] Mr Clark then spoke to the film, but before doing so he presented a set of blinkers that greyhounds wear. He said that with the blinkers on, dogs cannot see to the left or to the right and he said that during the run, “Maramarua Jack” was wanting to reach the rail. He then said that prior to the home-turn, “Maramarua Jack” was bumped by the 5 dog and that it showed on the film that “Maramarua Jack’s” tail went up on the air – which shows that it lost stride. He also showed in the home-straight where “Maramarua Jack” had been contacted by the inside dog and, again, its tail had gone up and it had lost stride.

[44] Mr Clark said that on the films available to the Stewards there was no sign at any stage of “Maramarua Jack” turning its head. He also said that, if it had have turned it head then the Stewards might have charged it with “marring”.

[45] Mr Clark was strongly of the view that the head-on film was relevant and he said that he was able to obtain a copy of the head-on view and he presented a DVD for showing to the Tribunal. This included the head-on view. It is fair to say that the head-on view was of poor quality and not very clear at all.

[46] Mr Clark also sought to introduce a film of another dog wearing blinkers and Mr Mulcay said that although he did not agree to it being produced at the hearing, he would leave it to the Tribunal to decide what evidential weight should be given to it.

S Mulcay Summary –

[47] Mr Mulcay firstly pointed to the fact that after the 28th of August experienced Stipendiary Stewards had viewed the available footage and believed that there should be a charge against “Maramarua Jack” of failing to pursue.

He said that Mr Austin had given to Mr Clark a clear intention to charge and that clearly Mr Austin was entitled to arrive at the decision that he had which was, that “Maramarua Jack” had not pursued.

Mr Mulcay also submitted that on the balance of probabilities there had been a breach of r 80.1(b) by “Maramarua Jack” and that it had failed to pursue.

S Clark Summary –

[48] Mr Clark said that on the 31st August 2014 this was a new hearing. He said it was under the instructions from the General Manager of the RIU to proceed with the charge and he did not get a fair hearing.

Mr Austin had said that it was a re-convened Hearing.

Mr Clark also submitted that the suggestion by Mr Austin that he be allowed extra time to have his dog re-vetted was contrary to the Rules. He said that the evidence was not conclusive and that the head-on film shows that it was not the case that “Maramarua Jack” had turned its head. He said, in fact, towards the finish the inside dog ran out and made contact with “Maramarua Jack” and that caused it to lose stride.

Mr Clark said that the whole procedure was poorly handled and that the evidence was not conclusive at all.

He also repeated that on the 28th of August 2014, as far as he was concerned, Ms Kinsey had told him that nothing further was going to be done and he believed that the matter was concluded at that stage.

Reasons for Decision –

(a) The Process –

[49] The Tribunal is concerned about a series of errors in the process which lead to the decision to impose a 28 day stand down on “Maramarua Jack” because of failure to pursue the lure.

[50] The first error is that there was no transcript from the hearing on the 28th August 2014. We understand that is normal process to have a hearing recorded and a transcript available where necessary. Ms Kinsey, who was in charge of the meeting and apologised for the fact that a transcript was not available, was assisted by Mr van Kan. If Mr Clark was interviewed at the meeting as a preliminary to a charge against “Maramarua Jack”, then there should have been a transcript.

[51] There is some doubt as to what was said between Ms Kinsey and Mr Clark in relation to the race night hearing. Ms Kinsey said that she told Mr Clark that there were two choices – either to charge the dog or to leave it. Mr Clark said that she told him that she would leave it, which he understood to mean that she would not proceed any further. It is unfortunate that this conversation was held in the bar.

We however, prefer Ms Kinsey’s recollection of this conversation.

[52] We are told that this was a re-convened hearing and, indeed the Stipendiary Steward’s report from both meetings on the 28th August 2014 and 31st August 2014 refer to this. Despite this being a re-convened hearing, Ms Kinsey has sought and obtained the authority of the General Manager of the RIU to proceed with the charge against “Maramarua Jack”. The Tribunal wonders at the need for this authority when the hearing is to be a re-convened hearing on raceday.

[53] We understand from Mr Austin that, although he said it was a re-convened hearing, that it was actually a separate hearing after Mr Godber’s authority had been given.

[54] Mr Austin on the 31st of August 2014, has interviewed Mr Clark and a transcript of that interview was provided to us. It has been presented to us as part of the evidence but we want to make it clear that it is a transcript of an interview and not a transcript of a hearing.

[55] Mr Austin subsequently completed an Information and gave it to his assistant, Mr van Kan to be served. It was not served and Mr Austin subsequently made the decision to stand down “Maramarua Jack” for 28 days, and it to be subject to the completion of a satisfactory trial.

[56] The Judicial Report from the 31st August 2014 states “The enquiry adjourned on the 28-8-2014 into Race 12 regarding the performance of “Maramarua Jack” was reconvened. “Maramarua Jack” (S Clark) was charged with a breach of r 80.1(b) (non-pursuit) first offence and stood down for 28 days until the completion of a satisfactory trial.

[57] This was a clear breach of natural justice in that the Information was not served on Mr Clark and the decision to impose penalty on “Maramarua Jack” was made in his absence. He did not have the opportunity to respond to the proposed charge against his dog prior to the penalty being imposed. It is not sufficient to say that the proposed charge was referred to in the interview with Mr Clark. It is noted that the information was emailed to him two days after the meeting. The Tribunal views this action with some concern and it is a clear reason to uphold the Appeal.

[58] The absence of a front-on film in the home-straight is also a major problem. As stated above, the Stewards are poorly served in this regard and Mr Clark, in this instance, is also poorly served. The evidence is inconclusive.

Failing to Pursue –

[59] The Charge of Failing to Pursue is based on the evidence of Ms Kinsey and Mr Austin and the films. As stated above, the films are inadequate because of the absence of a proper head-on, home-straight film.

With respect to the Stipendiary Stewards, relying on a side-on film to show a dog turning its head is fraught with problems. We are told that “Maramarua Jack” was wearing blinkers and that he was trying to run in, rather than turn his head in. It is difficult to point to exactly where “Maramarua Jack” turned its head and we must say that when Mr Austin was interpreting the film for us he experienced the same difficulty and, as far as we are concerned, could not adequately show exactly where “Maramarua Jack” turned its head rather than ran in.

[60] Mr Clark has provided us with a head-on film. He has told us that this showed that, in the run home, the inside dog ran out and bumped his dog. That may well show on a proper head-on film, but this film is of poor quality and is inconclusive.

[61] Mr Clark has produced another film for us but we have not given it any evidential weight at all.

[62] Looking at the definition of “failure to pursue the lure”, we note from the evidence that the Stewards were telling us that “Maramarua Jack” turned its head in the straight. Mr Austin endeavoured, with some difficulty to show us this, and as we have previously said, the film evidence is inconclusive and was not a help to him.

[63] Mr Mulcay has told us that the proof is on the balance of probabilities and we agree with that. However, any decision needs to be based on the evidence presented to us and, as far as this Tribunal is concerned, that film evidence is inconclusive. It would not be safe to uphold an appeal based on the film evidence.

Decision

[64] For the reasons set out above, the Tribunal believes that the failures in the process are sufficient to uphold the Appeal, but further to that the race evidence, ie: film evidence, is also sufficient to uphold the Appeal.

The Appeal is accordingly upheld.

Costs

[65] Mr Clark has been successful with his Appeal and we note that he has paid a $250.00 filing fee. It is appropriate that we order the RIU to reimburse Mr Clark for this filing fee.

[66] For the reasons set out above, and particularly the failures in the process, the RIU have been unsuccessful. It is appropriate that the RIU pays a contribution towards JCA costs and we therefore order that the RIU pay JCA costs in the sum of $300.00.

BJ SCOTT                              AJ DOOLEY

Chair                                    Tribunal Member

Dated: 16 September 2014

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