Appeal P Screen v RIU – Decision of Appeals Tribunal dated 20 May 2016 – Chair, Prof G Hall
ID: JCA15358
Decision:
BEFORE AN APPEALS TRIBUNAL OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN MRS PAULETTE SCREEN
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mr R McKenzie, Member
Appearing: Appellant in person
Mr S Symon for the Respondent
DECISION OF APPEALS TRIBUNAL
[1] The appellant, Mrs Screen, has filed a Notice of Appeal against the penalty of a fine of $2,500 and JCA costs of $3,500 and RIU costs of $3,500 ordered by a Judicial Committee on 14 March last with respect to a breach of r 1001(1)(zd) of the Rules of Harness Racing.
[2] This rule provides:
1001(1)(zd) being a licensed person or registered owner aids or assists or associates with any prohibited person or disqualified person for the purposes of the sale, purchase, care, breeding, training or racing of any horse registered under these Rules….
[3] A breach of r 1001(1)(zd) is a serious racing offence and is punishable by a maximum fine of $30,000 or a suspension or disqualification for a specific period or for life.
[4] The appellant admitted the breach during the course of a defended hearing on 14 March, at which she was one of two respondents who faced charges, and after hearing from the parties, the Judicial Committee proceeded on the day to impose penalty and make an award of costs in favour of the RIU and the JCA.
Preliminary matters
[5] Mrs Screen in her Notice of Appeal stated that she was “not informed of the wide scope of the rules that were used in the hearing”.
[6] A telephone conference was held on 7 April to advance the hearing of the appeal.
[7] It became evident during that conference that Mrs Screen disputed the fact that Mr Grimstone, in his conversation with her on 25 November, had drawn her attention to r 1001(1)(zd).
[8] The RIU responded that Mr Grimstone stated that he had so informed Mrs Screen during his interview with her on 25 November and that the bundle of documents he left with her contained a copy of r 1001(1)(zd). Mrs Screen stated he did not and the only rule mentioned to her was r 1303(1)(f) (which relates to entry into the stable area).
[9] This was a key point of difference between the parties.
[10] The Tribunal indicated that due to the manner in which penalty had come to be imposed by the Judicial Committee (an admitted breach part way through the hearing of the charge), despite our making reference to both the decision of 14 March and the ruling of 25 January, there was no clear factual basis upon which we could determine this aspect of the appeal. Mr Symon did not disagree.
[11] We proposed to the parties that there be an agreed summary of facts placed before this Tribunal and that the matter be heard on the papers. There was agreement that this was a sensible way to proceed.
[12] We indicated to Mrs Screen that we were prepared to accept the character references she had included with her Notice of Appeal in the form that she had provided, subject to there being no objection from the RIU. There was no objection.
[13] We informed Mrs Screen that her financial position would have to be placed before the Tribunal by way of an affidavit or its equivalent. In particular, we required information on the sources and amount of her income, assets, liabilities and outgoings.
[14] Mrs Screen’s accountant has furnished a financial report to us. We have also received written submissions from Mrs Screen.
[15] We informed Mr Symon that we required the respondent to prepare a full breakdown of the costs of the RIU. A breakdown, together with related submissions, has been received from the respondent.
The hearing before the Judicial Committee
[16] The charge found proved against Mrs Screen was that on 4 December 2015 at Pukekohe being a licensed person she associated with Mr Alan Lynch a disqualified person for the purpose of care of any horse registered under the Rules of Harness Racing being an offence under r 1001(1)(zd) and punishable under r 1001(2) of the Rules of Harness Racing.
[17] No record of any previous breaches of the Rules of Harness Racing has been placed before us and we therefore proceed on the basis that this is the appellant’s first breach of the Rules.
[18] The following account is from the decision of the Judicial Committee on 14 March.
“Mr Simon [sic] counsel for the RIU called two witnesses. The principal witness for the RIU was Mr Neil Grimstone who is the Manager of the Racing Integrity Unit of the RIU. Mr Grimstone gave evidence of visiting Mrs Screen’s racing stables on 17th November last year. He did not on that occasion locate Mr Lynch. He observed a BMW vehicle leaving the property and he followed that vehicle for some distance and was able to identify Mr Lynch as the driver. Mr Grimstone went on to relate that on 25th November last he again visited Mrs Screen’s stables and took a written statement from her. This was produced as an exhibit before the Committee. On 4th December last Mr Grimstone in the company of a colleague Mr Basil Payne again went to the Screen racing stables. This was to make available to Mrs Screen a written copy of the statement which had been taken from her on 25th November and to issue her with an official warning in relation to the disqualified person Mr Lynch being at her stables. Mr Grimstone related and this was supported by Mr Payne that they observed Mrs Screen and Mr Lynch each leading a horse in the area near the stables and that these horses were led into a paddock and that there was then some conversation. During that it was said by Mr Grimstone and by Mr Payne that Mrs Screen had said “this isn’t how it seems”.
Following Mr Grimstone’s evidence in chief and before cross-examination by Mr Connolly counsel for Mr Lynch and Mrs Screen the Committee asked questions of Mr Grimstone. The answers to those questions established that when Mr Grimstone went to the racing stables on 4th December 2015 that was for the purpose of serving a written copy of the statement obtained on 25th November and to issue an official warning to Mrs Screen. Further Mr Grimstone explained, in answer to questions, that had Mr Lynch not been observed in an area adjacent to the stables on that occasion no charge would have been laid against Mrs Screen and only one (1) charge preferred against Mr Lynch: that with reference to the 17th November last.”
[19] After these two witnesses had given evidence for the informant, discussion took place between the Committee and counsel as to what penalties might be appropriate in the event that Mr Lynch and Mrs Screen were to enter pleas of guilty. The Committee indicated the views, which it took, and thereafter Mr Connolly met at some length with Mr Lynch, Mrs Screen and also with Mrs Screen’s husband Mr William Screen. There were a number of exchanges between both counsel and the Committee, and after some consideration it was made clear that pleas of guilty would be entered by Mr Lynch in respect of both the informations which he faced and by Mrs Screen in relation to the information which she faced. These admissions were formally entered into the record.
[20] The RIU submitted a fine of $5,000 should be imposed upon Mrs Screen.
[21] The Committee concluded that in the circumstances a more modest fine was appropriate. It did not believe that this breach by Mrs Screen was done wilfully or for personal gain or benefit and she was fined the sum of $2,500.
[22] Mrs Screen was ordered to pay the sum of $3,500 by way of costs to the RIU and a similar sum to the JCA. With respect to Mrs Screen’s personal financial position not being strong and that she might have difficulty in meeting the fines and costs ordered, the Committee observed there were provisions available under the Rules of Harness Racing for licence holders to meet fines and costs orders by periodical payments.
Submissions on appeal
[23] Both the RIU and the appellant prepared written submissions. Mrs Screen explained she acted for herself because of the costs involved in consulting a lawyer.
[24] The appellant has placed a series of submissions before the Tribunal. We have had regard to all of these submissions although we do not find those that were prepared by her lawyer for the hearing at first instance advance the matter currently before us.
[25] Mr Symon’s submissions helpfully included the summary of facts, which was the summary on which the Committee gave its sentence indication. This had not previously been before us. Mr Symon supplemented this summary with respect to the information that Mr Grimstone had conveyed orally or given physically to Mrs Screen. We make comment on this later in our decision.
[26] We summarise the points that are not in dispute and note those that are.
[27] The appellant is a licensed person who currently has 3 horses in work. She has been in the Harness industry for approximately 30 years. The disqualified person is Mr Alan Lynch who was disqualified for 4 years after 3 charges of administering a prohibited substance were found proved by a Judicial Committee of the JCA on 9 October 2015. The disqualification took effect from 16 October 2015.
[28] On 17 November RIU staff visited the appellant’s stables and Mr Lynch was found to be there. The appellant was not present. When the appellant was spoken to a short time later she stated that she had an arrangement with Mr Lynch whereby he could graze his horse on her property. She acknowledged she knew he was disqualified but said she had a limited knowledge of the Rules as they related to disqualified persons.
[29] On 25 November a RIU investigator spoke to the appellant at her stables. A formal statement was taken from her. A copy of the applicable rules was given to Mrs Screen. (Just which rules were given is in dispute.)
[30] The RIU investigator explained the relevant rules to the appellant (again there is a dispute as to which rules were mentioned) and informed her that she had breached the Rules of Harness Racing. The appellant replied she did not think she was breaking the Rules and was just helping out Mr Lynch until he had sold his horse. She told the investigator she felt responsible for the welfare of this horse. In response, the investigator told her this was Mr Lynch’s responsibility and she needed to come to an arrangement with him that complied with the Rules.
[31] On 4 December RIU staff returned to the appellant’s stables to serve her with an official written warning for her actions of 25 November. Mr Lynch and Mrs Screen were observed to be leading 2 horses along the driveway to the stables. They put the 2 horses in a paddock and spoke with the RIU staff. Mrs Screen said, “This is not how it seems.” She explained that Mr Lynch was only present to take the cover off his horse and she had got him to help with some yearlings. The warning notice was served and the appellant was told she was again in breach of the Rules as they relate to disqualified persons.
[32] The RIU submitted that the appellant’s actions were a deliberate and knowing breach of the Rules. In support of this submission they relied on the RIU investigators multiple visits to her property and that she had received a very clear verbal warning about the status of her conduct. The respondent also alleged that the benefit to the appellant was that Mr Lynch would assist her with her yearlings.
[33] The appellant stated that on 2 November she permitted a horse owned by Mr Lynch to graze on her property temporarily until he found other grazing. This was on the condition he picked up any poo from the paddock and fed his horse. On 9 November she emailed the RIU and the JCA to support Mr Lynch in his being able to work with horses that were not involved with racing. This was not a job offer, she emphasised, just a support letter — Mr Lynch had never been employed by her in any capacity.
[34] On 25 November Mr Grimstone came to the appellant’s property and interviewed her. She stated that at the time she did not realise this was an interview, as he was friendly and was asking questions, which she had no hesitation in answering.
[35] Mrs Screen stated that Mr Grimstone then handed her a copy of a rule, r 1303(1)(f), highlighted with the fact that Mr Lynch was not allowed in the stable area. She emphasised that this rule only said that a disqualified person was not allowed in the stable area of any property of a licensed person.
[36] Mrs Screen stated her stable area is completely separate from the rest of the property, with fencing and planting, as 3 other businesses operate from the property. Mr Grimstone did not advise her that the RIU would see the whole property as the stable area.
[37] The appellant was adamant that Mr Grimstone did not hand her r 1001(1)(zd) at this time. She alleged that this had since been inserted into Mr Grimstone’s evidence and into the statement of facts. (We add it is clear that this was not in the original summary of facts, with Mr Symon explaining this was added to clarify the RIU’s position before this Tribunal — again we deal with this later in our judgment (at [41]).) If this rule had been handed to her on 25 November, she told the Tribunal that she would have asked Mr Lynch to leave straight away and make other arrangements for his horse.
[38] On 4 December Mrs Screen stated she was putting 2 unruly yearlings out in a paddock owned by Mr Peter Johnson. One was rearing and trying to get away. Mr Lynch had taken the cover off his horse and was returning down the grass race, and she yelled out to him to take a yearling from her to help her out.
[39] Mr Grimstone then arrived with his official written warning letter, which he then handed to the appellant and, on reading it and realising the serious nature of the letter, she stated she asked Mr Lynch to leave immediately and make arrangements as soon as possible for his horse. On the back of the letter was attached the transcript of the interview from 25 November.
Decision
[40] During the teleconference on 7 April the Tribunal expressed its concern at not having a full factual basis on which to determine the appeal. The Tribunal was aware that Mr Grimstone’s evidence was summarised in the part of the Judicial Committee’s decision headed “The course of events today”, but this was not a full account of the facts of the matter. Attached to the RIU’s submissions on appeal was the summary of facts on which we understand Mrs Screen admitted the breach of r 1001(1)(zd). There is no reference to this summary in the decision of the Judicial Committee. The Tribunal was thus not aware of the ambit of the facts that had been agreed between the parties before Mrs Screen’s admission of the breach on the day.
[41] The summary provided to this Tribunal by the RIU has underlined additions that primarily expand upon the details of the conversation Mr Grimstone had with the appellant on 27 November and describe the documentation he handed to her. We can understand why this is so as our minute issued after the teleconference requested that the parties address this issue and, if possible, reach agreement.
[42] It is clear that the parties do not agree as to what was said by Mr Grimstone to Mrs Screen on 27 November nor is there agreement as to what documentation was given to her.
[43] An appeal is by way of rehearing: cl 44.1 of the 5th schedule to the Rules. This Tribunal has the power to consider new evidence on such an appeal but this power is usually exercised sparingly and only when the new evidence sought to be adduced is fresh in that it could not have been placed before the Judicial Committee.
[44] Mr Symon submitted that given the significant facts in dispute the appropriate way to proceed was either for this Tribunal to consider the matter “de novo” or to submit the case back to the Judicial Committee for the disputed facts to be resolved. The RIU suggested the Tribunal might find the latter alternative the more attractive.
[45] We do not believe that that course of action is appropriate. Mrs Screen admitted the breach on the basis of the summary of facts that was before the Judicial Committee on the day. We now have this summary before us and we do not believe in the circumstances of this case it is appropriate for the RIU to be able to augment the facts or for Mrs Screen to be able to minimise her actions.
[46] The Judicial Committee stated at [3.3] that it was satisfied that Mr Lynch had no part in assisting Mrs Screen in her training activities. Significantly, the Committee concluded that it was clear from the discussions between Mr Grimstone and Mrs Screen that she did not perhaps fully understand the implications of the rule and that she had been endeavouring to help Mr Lynch with the horse which he had and which required to be agisted. If Mrs Screen had acted post the interview of 25 November 2015 to end any contact with Mr Lynch there would have been a warning issued, and no charge would have been preferred. It was the events of 4 December 2015 that had led to the charge against Mrs Screen.
[47] A breach of r 1001(1)(zd) is one of strict liability (r 1008(b)) therefore it is understandable that Mrs Screen admitted the breach.
[48] We have concluded that these disputed facts do not alter our assessment of the penalty that is appropriate in this case. Whether or not r 1001(1)(zd) was in the bundle of documents she received, or whether the rule was mentioned to her, it is evident to us that the significance or impact of the rule did not register with Mrs Screen. It is clear that she was aware of r 1303(1)(f) and believed the Rules with respect to disqualified persons extended only to the stabling area of her property. Consequently, she permitted Mr Lynch to continue to graze his horse in a paddock on her property.
[49] In assessing the degree of culpability we proceed on the basis that Mrs Screen did not act in deliberate breach of her obligations under the Rules, but in ignorance of the provisions of r 1001(1)(zd). This conclusion is supported by the finding of the Judicial Committee at [3.3] that the breach was not done wilfully or for personal gain or benefit. We therefore do not intend to submit the case back to the Judicial Committee as Mr Symon would have us do, nor do we believe it is necessary for us to hold a disputed fact hearing.
[50] Mrs Screen is an experienced trainer. There is a clear obligation upon licensed persons to be aware of and familiar with the Rules of Harness Racing. In particular, she should have been aware of the Rules as they relate to disqualified persons. Moreover, as a result of the visit of Mr Grimstone the appellant was clearly on notice that she did not fully appreciate the ambit of the Rules in this regard. She continued to permit Mr Lynch to graze his horse on her property despite her knowledge that he was a disqualified person. Her motivation, as we understand it, was to assist Mr Lynch to feed and care for his horse, as she was concerned as to its welfare.
[51] Mrs Screen submitted her lawyer had notified the Committee prior to the first hearing that she had a doctor’s letter advising of the fact that she had broken her shoulder in two places and the doctor’s recommendation was to wait for three weeks before the hearing should proceed. Despite this fact, she and her lawyer were at the hearing on January 25 but that hearing was adjourned as he also acted for Mr Lynch and needed to obtain instructions from him.
[52] Mrs Screen has stated that at the second hearing she was approached by her lawyer advising that although the Committee believed there was nothing sinister in her actions and Mr Grimstone did not believe that she had Mr Lynch near her racehorses, she still would be found guilty of the breach, as Mr Lynch was on the property. She thus admitted the breach at this time.
[53] The appellant submitted that the Tribunal should have regard to the penalty of $500 that was imposed in Kenny. This case was decided only a few days before the Judicial Committee imposed penalty upon Mrs Screen, and it appears the Committee’s attention was not drawn to it.
[54] Kenny is relevant to the determination of this appeal, although the circumstances of the breach differ. The maximum penalty in that case was $20,000. Ms Kenny admitted associating with a disqualified person in that she permitted a disqualified jockey to ride track work on her property for a period of 4 days. She believed the jockey was allowed to ride work on private property as opposed to a public racetrack. The Committee accepted the offending was the result of a genuine misunderstanding for which she had accepted responsibility and expressed regret.
[55] There is a clear disparity between the penalty imposed in Kenny and that imposed upon the appellant. We do not accept the respondent’s submission that the appellant’s breach was different in that her actions were a deliberate and knowing breach of the Rules or that Ms Kenny was sentenced on the basis that she had been confused as to the difference between a jockey being suspended rather than disqualified. The Committee in that case emphasised there while there was a possible confusion as between activities that were permitted by a suspended as opposed to a disqualified jockey, there was an obligation on a licence-holder to be familiar with the relevant rules. We reiterate, however, that Mrs Screen had been put on notice that Mr Lynch was disqualified and if he she was to permit him to remain on her property, as she indeed decided to do, she should have done so in full knowledge of the provisions of the Rules. If she was not familiar with the Rules, she should have taken steps to rectify this matter.
[56] We are satisfied that the penalty imposed on the appellant was manifestly excessive when regard is had to the penalty imposed in Kenny, the gravity of the breach in this case, the culpability of Mrs Screen, her excellent record, the very positive character references that have been placed before us, and her admission of the breach.
[57] A fine of $1000 is substituted for the fine of $2500 imposed by the Judicial Committee.
[58] Mrs Screen also appeals against the quantum of the costs order.
[59] The costs of the RIU are a little over $9000 and the JCA are a little under $4000. The RIU figure relates to the joint hearing of the charges against the appellant and Mr Lynch. However, as the Committee itself acknowledged, the need to delay the hearing of the matter on 25 January was principally because Mr Lynch had not provided instructions to Mr Connolly, who was acting for both respondents in the matter at that time. Despite her health issues, Mrs Screen had appeared on the day and was willing to proceed. On this basis, we would assess her share of the actual costs to be 40 per cent of $9000. This is $3600.
[60] An award must be just and reasonable. The usual practice where an information is found to be proved is to make an award of between 50 to 60 per cent of the actual costs of the opposing party. Regard is to be had, however, to the means of the person found to be in breach of the Rules. We have more information before us as to the appellant’s financial circumstances than did the Judicial Committee on the day.
[61] It is evident to us from the detailed financial information that the appellant has placed before us that she is not in a strong financial position and is unable immediately to pay a fine and costs. We believe an award at the level of 50 per cent of RIU costs is appropriate.
[62] JCA costs (excluding Mr Lynch) are $3800. Again we make an award at the level of 50 per cent.
[63] We award costs in the sum of $1800 to the RIU and $1900 to the JCA.
[64] Mrs Screen has requested that the fine and costs be paid by instalment, and in particular, there be a deferment of payment of a portion of the amount until the start of the new season. Rule 1010 requires that a sum ordered to be paid by way of a fine or costs be paid within 28 days of the decision of the Appeals Tribunal. Clauses 29.2 and 52.2 provide that if a costs order remains unpaid after this time the person can be placed on the Unpaid Forfeit List. However, we understand that HRNZ will permit payment by instalment and this would seem appropriate in this case. As we have substantially reduced the amount Mrs Screen has to pay, we make no order as to deferment at this time, but give Mrs Screen leave to apply to the Tribunal should there be a need to address this issue.
[65] We make no award of costs with respect to the hearing of this appeal at this juncture. We note that Mrs Screen has represented herself but should either party consider it appropriate for an award to be made in their favour, they are given leave to apply to this Tribunal within 10 working days.
Dated at Dunedin this 20th day of May 2016.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 23/05/2016
Publish Date: 23/05/2016
JCA Decision Fields (raw)
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Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 23/05/2016
hearing_title: Appeal P Screen v RIU - Decision of Appeals Tribunal dated 20 May 2016 - Chair, Prof G Hall
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appealdecision: NO LINKED APPEAL DECISION
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reasonsfordecision:
Decision:
BEFORE AN APPEALS TRIBUNAL OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN MRS PAULETTE SCREEN
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mr R McKenzie, Member
Appearing: Appellant in person
Mr S Symon for the Respondent
DECISION OF APPEALS TRIBUNAL
[1] The appellant, Mrs Screen, has filed a Notice of Appeal against the penalty of a fine of $2,500 and JCA costs of $3,500 and RIU costs of $3,500 ordered by a Judicial Committee on 14 March last with respect to a breach of r 1001(1)(zd) of the Rules of Harness Racing.
[2] This rule provides:
1001(1)(zd) being a licensed person or registered owner aids or assists or associates with any prohibited person or disqualified person for the purposes of the sale, purchase, care, breeding, training or racing of any horse registered under these Rules….
[3] A breach of r 1001(1)(zd) is a serious racing offence and is punishable by a maximum fine of $30,000 or a suspension or disqualification for a specific period or for life.
[4] The appellant admitted the breach during the course of a defended hearing on 14 March, at which she was one of two respondents who faced charges, and after hearing from the parties, the Judicial Committee proceeded on the day to impose penalty and make an award of costs in favour of the RIU and the JCA.
Preliminary matters
[5] Mrs Screen in her Notice of Appeal stated that she was “not informed of the wide scope of the rules that were used in the hearing”.
[6] A telephone conference was held on 7 April to advance the hearing of the appeal.
[7] It became evident during that conference that Mrs Screen disputed the fact that Mr Grimstone, in his conversation with her on 25 November, had drawn her attention to r 1001(1)(zd).
[8] The RIU responded that Mr Grimstone stated that he had so informed Mrs Screen during his interview with her on 25 November and that the bundle of documents he left with her contained a copy of r 1001(1)(zd). Mrs Screen stated he did not and the only rule mentioned to her was r 1303(1)(f) (which relates to entry into the stable area).
[9] This was a key point of difference between the parties.
[10] The Tribunal indicated that due to the manner in which penalty had come to be imposed by the Judicial Committee (an admitted breach part way through the hearing of the charge), despite our making reference to both the decision of 14 March and the ruling of 25 January, there was no clear factual basis upon which we could determine this aspect of the appeal. Mr Symon did not disagree.
[11] We proposed to the parties that there be an agreed summary of facts placed before this Tribunal and that the matter be heard on the papers. There was agreement that this was a sensible way to proceed.
[12] We indicated to Mrs Screen that we were prepared to accept the character references she had included with her Notice of Appeal in the form that she had provided, subject to there being no objection from the RIU. There was no objection.
[13] We informed Mrs Screen that her financial position would have to be placed before the Tribunal by way of an affidavit or its equivalent. In particular, we required information on the sources and amount of her income, assets, liabilities and outgoings.
[14] Mrs Screen’s accountant has furnished a financial report to us. We have also received written submissions from Mrs Screen.
[15] We informed Mr Symon that we required the respondent to prepare a full breakdown of the costs of the RIU. A breakdown, together with related submissions, has been received from the respondent.
The hearing before the Judicial Committee
[16] The charge found proved against Mrs Screen was that on 4 December 2015 at Pukekohe being a licensed person she associated with Mr Alan Lynch a disqualified person for the purpose of care of any horse registered under the Rules of Harness Racing being an offence under r 1001(1)(zd) and punishable under r 1001(2) of the Rules of Harness Racing.
[17] No record of any previous breaches of the Rules of Harness Racing has been placed before us and we therefore proceed on the basis that this is the appellant’s first breach of the Rules.
[18] The following account is from the decision of the Judicial Committee on 14 March.
“Mr Simon [sic] counsel for the RIU called two witnesses. The principal witness for the RIU was Mr Neil Grimstone who is the Manager of the Racing Integrity Unit of the RIU. Mr Grimstone gave evidence of visiting Mrs Screen’s racing stables on 17th November last year. He did not on that occasion locate Mr Lynch. He observed a BMW vehicle leaving the property and he followed that vehicle for some distance and was able to identify Mr Lynch as the driver. Mr Grimstone went on to relate that on 25th November last he again visited Mrs Screen’s stables and took a written statement from her. This was produced as an exhibit before the Committee. On 4th December last Mr Grimstone in the company of a colleague Mr Basil Payne again went to the Screen racing stables. This was to make available to Mrs Screen a written copy of the statement which had been taken from her on 25th November and to issue her with an official warning in relation to the disqualified person Mr Lynch being at her stables. Mr Grimstone related and this was supported by Mr Payne that they observed Mrs Screen and Mr Lynch each leading a horse in the area near the stables and that these horses were led into a paddock and that there was then some conversation. During that it was said by Mr Grimstone and by Mr Payne that Mrs Screen had said “this isn’t how it seems”.
Following Mr Grimstone’s evidence in chief and before cross-examination by Mr Connolly counsel for Mr Lynch and Mrs Screen the Committee asked questions of Mr Grimstone. The answers to those questions established that when Mr Grimstone went to the racing stables on 4th December 2015 that was for the purpose of serving a written copy of the statement obtained on 25th November and to issue an official warning to Mrs Screen. Further Mr Grimstone explained, in answer to questions, that had Mr Lynch not been observed in an area adjacent to the stables on that occasion no charge would have been laid against Mrs Screen and only one (1) charge preferred against Mr Lynch: that with reference to the 17th November last.”
[19] After these two witnesses had given evidence for the informant, discussion took place between the Committee and counsel as to what penalties might be appropriate in the event that Mr Lynch and Mrs Screen were to enter pleas of guilty. The Committee indicated the views, which it took, and thereafter Mr Connolly met at some length with Mr Lynch, Mrs Screen and also with Mrs Screen’s husband Mr William Screen. There were a number of exchanges between both counsel and the Committee, and after some consideration it was made clear that pleas of guilty would be entered by Mr Lynch in respect of both the informations which he faced and by Mrs Screen in relation to the information which she faced. These admissions were formally entered into the record.
[20] The RIU submitted a fine of $5,000 should be imposed upon Mrs Screen.
[21] The Committee concluded that in the circumstances a more modest fine was appropriate. It did not believe that this breach by Mrs Screen was done wilfully or for personal gain or benefit and she was fined the sum of $2,500.
[22] Mrs Screen was ordered to pay the sum of $3,500 by way of costs to the RIU and a similar sum to the JCA. With respect to Mrs Screen’s personal financial position not being strong and that she might have difficulty in meeting the fines and costs ordered, the Committee observed there were provisions available under the Rules of Harness Racing for licence holders to meet fines and costs orders by periodical payments.
Submissions on appeal
[23] Both the RIU and the appellant prepared written submissions. Mrs Screen explained she acted for herself because of the costs involved in consulting a lawyer.
[24] The appellant has placed a series of submissions before the Tribunal. We have had regard to all of these submissions although we do not find those that were prepared by her lawyer for the hearing at first instance advance the matter currently before us.
[25] Mr Symon’s submissions helpfully included the summary of facts, which was the summary on which the Committee gave its sentence indication. This had not previously been before us. Mr Symon supplemented this summary with respect to the information that Mr Grimstone had conveyed orally or given physically to Mrs Screen. We make comment on this later in our decision.
[26] We summarise the points that are not in dispute and note those that are.
[27] The appellant is a licensed person who currently has 3 horses in work. She has been in the Harness industry for approximately 30 years. The disqualified person is Mr Alan Lynch who was disqualified for 4 years after 3 charges of administering a prohibited substance were found proved by a Judicial Committee of the JCA on 9 October 2015. The disqualification took effect from 16 October 2015.
[28] On 17 November RIU staff visited the appellant’s stables and Mr Lynch was found to be there. The appellant was not present. When the appellant was spoken to a short time later she stated that she had an arrangement with Mr Lynch whereby he could graze his horse on her property. She acknowledged she knew he was disqualified but said she had a limited knowledge of the Rules as they related to disqualified persons.
[29] On 25 November a RIU investigator spoke to the appellant at her stables. A formal statement was taken from her. A copy of the applicable rules was given to Mrs Screen. (Just which rules were given is in dispute.)
[30] The RIU investigator explained the relevant rules to the appellant (again there is a dispute as to which rules were mentioned) and informed her that she had breached the Rules of Harness Racing. The appellant replied she did not think she was breaking the Rules and was just helping out Mr Lynch until he had sold his horse. She told the investigator she felt responsible for the welfare of this horse. In response, the investigator told her this was Mr Lynch’s responsibility and she needed to come to an arrangement with him that complied with the Rules.
[31] On 4 December RIU staff returned to the appellant’s stables to serve her with an official written warning for her actions of 25 November. Mr Lynch and Mrs Screen were observed to be leading 2 horses along the driveway to the stables. They put the 2 horses in a paddock and spoke with the RIU staff. Mrs Screen said, “This is not how it seems.” She explained that Mr Lynch was only present to take the cover off his horse and she had got him to help with some yearlings. The warning notice was served and the appellant was told she was again in breach of the Rules as they relate to disqualified persons.
[32] The RIU submitted that the appellant’s actions were a deliberate and knowing breach of the Rules. In support of this submission they relied on the RIU investigators multiple visits to her property and that she had received a very clear verbal warning about the status of her conduct. The respondent also alleged that the benefit to the appellant was that Mr Lynch would assist her with her yearlings.
[33] The appellant stated that on 2 November she permitted a horse owned by Mr Lynch to graze on her property temporarily until he found other grazing. This was on the condition he picked up any poo from the paddock and fed his horse. On 9 November she emailed the RIU and the JCA to support Mr Lynch in his being able to work with horses that were not involved with racing. This was not a job offer, she emphasised, just a support letter — Mr Lynch had never been employed by her in any capacity.
[34] On 25 November Mr Grimstone came to the appellant’s property and interviewed her. She stated that at the time she did not realise this was an interview, as he was friendly and was asking questions, which she had no hesitation in answering.
[35] Mrs Screen stated that Mr Grimstone then handed her a copy of a rule, r 1303(1)(f), highlighted with the fact that Mr Lynch was not allowed in the stable area. She emphasised that this rule only said that a disqualified person was not allowed in the stable area of any property of a licensed person.
[36] Mrs Screen stated her stable area is completely separate from the rest of the property, with fencing and planting, as 3 other businesses operate from the property. Mr Grimstone did not advise her that the RIU would see the whole property as the stable area.
[37] The appellant was adamant that Mr Grimstone did not hand her r 1001(1)(zd) at this time. She alleged that this had since been inserted into Mr Grimstone’s evidence and into the statement of facts. (We add it is clear that this was not in the original summary of facts, with Mr Symon explaining this was added to clarify the RIU’s position before this Tribunal — again we deal with this later in our judgment (at [41]).) If this rule had been handed to her on 25 November, she told the Tribunal that she would have asked Mr Lynch to leave straight away and make other arrangements for his horse.
[38] On 4 December Mrs Screen stated she was putting 2 unruly yearlings out in a paddock owned by Mr Peter Johnson. One was rearing and trying to get away. Mr Lynch had taken the cover off his horse and was returning down the grass race, and she yelled out to him to take a yearling from her to help her out.
[39] Mr Grimstone then arrived with his official written warning letter, which he then handed to the appellant and, on reading it and realising the serious nature of the letter, she stated she asked Mr Lynch to leave immediately and make arrangements as soon as possible for his horse. On the back of the letter was attached the transcript of the interview from 25 November.
Decision
[40] During the teleconference on 7 April the Tribunal expressed its concern at not having a full factual basis on which to determine the appeal. The Tribunal was aware that Mr Grimstone’s evidence was summarised in the part of the Judicial Committee’s decision headed “The course of events today”, but this was not a full account of the facts of the matter. Attached to the RIU’s submissions on appeal was the summary of facts on which we understand Mrs Screen admitted the breach of r 1001(1)(zd). There is no reference to this summary in the decision of the Judicial Committee. The Tribunal was thus not aware of the ambit of the facts that had been agreed between the parties before Mrs Screen’s admission of the breach on the day.
[41] The summary provided to this Tribunal by the RIU has underlined additions that primarily expand upon the details of the conversation Mr Grimstone had with the appellant on 27 November and describe the documentation he handed to her. We can understand why this is so as our minute issued after the teleconference requested that the parties address this issue and, if possible, reach agreement.
[42] It is clear that the parties do not agree as to what was said by Mr Grimstone to Mrs Screen on 27 November nor is there agreement as to what documentation was given to her.
[43] An appeal is by way of rehearing: cl 44.1 of the 5th schedule to the Rules. This Tribunal has the power to consider new evidence on such an appeal but this power is usually exercised sparingly and only when the new evidence sought to be adduced is fresh in that it could not have been placed before the Judicial Committee.
[44] Mr Symon submitted that given the significant facts in dispute the appropriate way to proceed was either for this Tribunal to consider the matter “de novo” or to submit the case back to the Judicial Committee for the disputed facts to be resolved. The RIU suggested the Tribunal might find the latter alternative the more attractive.
[45] We do not believe that that course of action is appropriate. Mrs Screen admitted the breach on the basis of the summary of facts that was before the Judicial Committee on the day. We now have this summary before us and we do not believe in the circumstances of this case it is appropriate for the RIU to be able to augment the facts or for Mrs Screen to be able to minimise her actions.
[46] The Judicial Committee stated at [3.3] that it was satisfied that Mr Lynch had no part in assisting Mrs Screen in her training activities. Significantly, the Committee concluded that it was clear from the discussions between Mr Grimstone and Mrs Screen that she did not perhaps fully understand the implications of the rule and that she had been endeavouring to help Mr Lynch with the horse which he had and which required to be agisted. If Mrs Screen had acted post the interview of 25 November 2015 to end any contact with Mr Lynch there would have been a warning issued, and no charge would have been preferred. It was the events of 4 December 2015 that had led to the charge against Mrs Screen.
[47] A breach of r 1001(1)(zd) is one of strict liability (r 1008(b)) therefore it is understandable that Mrs Screen admitted the breach.
[48] We have concluded that these disputed facts do not alter our assessment of the penalty that is appropriate in this case. Whether or not r 1001(1)(zd) was in the bundle of documents she received, or whether the rule was mentioned to her, it is evident to us that the significance or impact of the rule did not register with Mrs Screen. It is clear that she was aware of r 1303(1)(f) and believed the Rules with respect to disqualified persons extended only to the stabling area of her property. Consequently, she permitted Mr Lynch to continue to graze his horse in a paddock on her property.
[49] In assessing the degree of culpability we proceed on the basis that Mrs Screen did not act in deliberate breach of her obligations under the Rules, but in ignorance of the provisions of r 1001(1)(zd). This conclusion is supported by the finding of the Judicial Committee at [3.3] that the breach was not done wilfully or for personal gain or benefit. We therefore do not intend to submit the case back to the Judicial Committee as Mr Symon would have us do, nor do we believe it is necessary for us to hold a disputed fact hearing.
[50] Mrs Screen is an experienced trainer. There is a clear obligation upon licensed persons to be aware of and familiar with the Rules of Harness Racing. In particular, she should have been aware of the Rules as they relate to disqualified persons. Moreover, as a result of the visit of Mr Grimstone the appellant was clearly on notice that she did not fully appreciate the ambit of the Rules in this regard. She continued to permit Mr Lynch to graze his horse on her property despite her knowledge that he was a disqualified person. Her motivation, as we understand it, was to assist Mr Lynch to feed and care for his horse, as she was concerned as to its welfare.
[51] Mrs Screen submitted her lawyer had notified the Committee prior to the first hearing that she had a doctor’s letter advising of the fact that she had broken her shoulder in two places and the doctor’s recommendation was to wait for three weeks before the hearing should proceed. Despite this fact, she and her lawyer were at the hearing on January 25 but that hearing was adjourned as he also acted for Mr Lynch and needed to obtain instructions from him.
[52] Mrs Screen has stated that at the second hearing she was approached by her lawyer advising that although the Committee believed there was nothing sinister in her actions and Mr Grimstone did not believe that she had Mr Lynch near her racehorses, she still would be found guilty of the breach, as Mr Lynch was on the property. She thus admitted the breach at this time.
[53] The appellant submitted that the Tribunal should have regard to the penalty of $500 that was imposed in Kenny. This case was decided only a few days before the Judicial Committee imposed penalty upon Mrs Screen, and it appears the Committee’s attention was not drawn to it.
[54] Kenny is relevant to the determination of this appeal, although the circumstances of the breach differ. The maximum penalty in that case was $20,000. Ms Kenny admitted associating with a disqualified person in that she permitted a disqualified jockey to ride track work on her property for a period of 4 days. She believed the jockey was allowed to ride work on private property as opposed to a public racetrack. The Committee accepted the offending was the result of a genuine misunderstanding for which she had accepted responsibility and expressed regret.
[55] There is a clear disparity between the penalty imposed in Kenny and that imposed upon the appellant. We do not accept the respondent’s submission that the appellant’s breach was different in that her actions were a deliberate and knowing breach of the Rules or that Ms Kenny was sentenced on the basis that she had been confused as to the difference between a jockey being suspended rather than disqualified. The Committee in that case emphasised there while there was a possible confusion as between activities that were permitted by a suspended as opposed to a disqualified jockey, there was an obligation on a licence-holder to be familiar with the relevant rules. We reiterate, however, that Mrs Screen had been put on notice that Mr Lynch was disqualified and if he she was to permit him to remain on her property, as she indeed decided to do, she should have done so in full knowledge of the provisions of the Rules. If she was not familiar with the Rules, she should have taken steps to rectify this matter.
[56] We are satisfied that the penalty imposed on the appellant was manifestly excessive when regard is had to the penalty imposed in Kenny, the gravity of the breach in this case, the culpability of Mrs Screen, her excellent record, the very positive character references that have been placed before us, and her admission of the breach.
[57] A fine of $1000 is substituted for the fine of $2500 imposed by the Judicial Committee.
[58] Mrs Screen also appeals against the quantum of the costs order.
[59] The costs of the RIU are a little over $9000 and the JCA are a little under $4000. The RIU figure relates to the joint hearing of the charges against the appellant and Mr Lynch. However, as the Committee itself acknowledged, the need to delay the hearing of the matter on 25 January was principally because Mr Lynch had not provided instructions to Mr Connolly, who was acting for both respondents in the matter at that time. Despite her health issues, Mrs Screen had appeared on the day and was willing to proceed. On this basis, we would assess her share of the actual costs to be 40 per cent of $9000. This is $3600.
[60] An award must be just and reasonable. The usual practice where an information is found to be proved is to make an award of between 50 to 60 per cent of the actual costs of the opposing party. Regard is to be had, however, to the means of the person found to be in breach of the Rules. We have more information before us as to the appellant’s financial circumstances than did the Judicial Committee on the day.
[61] It is evident to us from the detailed financial information that the appellant has placed before us that she is not in a strong financial position and is unable immediately to pay a fine and costs. We believe an award at the level of 50 per cent of RIU costs is appropriate.
[62] JCA costs (excluding Mr Lynch) are $3800. Again we make an award at the level of 50 per cent.
[63] We award costs in the sum of $1800 to the RIU and $1900 to the JCA.
[64] Mrs Screen has requested that the fine and costs be paid by instalment, and in particular, there be a deferment of payment of a portion of the amount until the start of the new season. Rule 1010 requires that a sum ordered to be paid by way of a fine or costs be paid within 28 days of the decision of the Appeals Tribunal. Clauses 29.2 and 52.2 provide that if a costs order remains unpaid after this time the person can be placed on the Unpaid Forfeit List. However, we understand that HRNZ will permit payment by instalment and this would seem appropriate in this case. As we have substantially reduced the amount Mrs Screen has to pay, we make no order as to deferment at this time, but give Mrs Screen leave to apply to the Tribunal should there be a need to address this issue.
[65] We make no award of costs with respect to the hearing of this appeal at this juncture. We note that Mrs Screen has represented herself but should either party consider it appropriate for an award to be made in their favour, they are given leave to apply to this Tribunal within 10 working days.
Dated at Dunedin this 20th day of May 2016.
Geoff Hall, Chairman
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