Appeal LJ Justice v RIU – 8 February 2012 – Decision dated 14 March 2012

hearingid: ad7d18fa1a4981e44e364557e5c79768

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decisiondate: 12/03/2012

hearing_title: Appeal LJ Justice v RIU - 8 February 2012 - Decision dated 14 March 2012

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE APPEALS TRIBUNAL
HELD AT WELLINGTON

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN LANCE JUSTICE
Appellant

AND HARNESS RACING NEW ZEALAND
(THOMAS RODNEY CARMICHAEL)
Respondent

Judicial Committee: The Hon Sir John Hansen KNZM (Chairman), Murray McKechnie

Appearances: M J Thomas and R Donnelly for Appellant, C J Lange for Respondent

Date of Hearing: 7 February 2012.

Date of Decision: 14 March 2012

DECISION OF APPEALS COMMITTEE

[1] On Friday 8 April 2011 a horse, named Smoken Up, trained and driven by the appellant, won the Pacing Grand Final of the Inter-Dominion meeting at Alexandra Park.

[2] Race urine samples showed the presence of dimethyl sulphoxide (DMSO) at a level of 25.8mg/L. The New Zealand Rules of Harness Racing make the presence of DMSO at a concentration in excess of 15 mg/L of urine a prohibited substance, as it is included in the Prohibited Substance Regulations.

[3] As a consequence, Mr Justice, as the trainer, was charged with breaches of rules 1004(1) and (2) of the Rules.

[4] Mr Justice defended the charges, and they were heard by the Judicial Committee on 23, 24 and 30 August 2011.

[5] On 31 October 2011, in a careful and considered reserved decision, the Judicial Committee found the charges proved.

[6] The committee then dealt with penalty in a further decision dated 16 December 2011. They ordered Mr Justice to pay a fine of $3500 and costs to the Racing Integrity Unit and the Judicial Control Authority in the sums respectively of $16,425 and $16,104. In accordance with the rule, the horse Smoken Up was disqualified from the Pacing Grand Final Race 8 and the race placings were amended accordingly. The disqualification was a mandatory consequence of the charges being proved. (R 1004(8))

[7] Mr Justice appeals on no less than nine grounds that were forcefully pursued by Ms Thomas at the hearing. However, quite clearly some matters were of far greater import than others.

[8] Much of the argument before the committee related to three matters:

i) whether or not the offence was one of strict or absolute liability;

ii) the consequences of non-disclosure by the Racing Science Centre in Queensland (QRSC); and

iii) various factual challenges.

[9] These were the matters pursued on appeal, essentially in that order.

The appeal

[10] We have received extensive written submissions that were clearly similar to those pursued before the committee. Those submissions are set out extensively and in detail in the committee’s decision and also in the lengthy written and oral submissions made to us. Rather than spend time setting out those submissions, we go straight to the points pursued.

[11] The appellant was charged with a breach of r 1004 which, where relevant, provides:

1004 (1) A horse shall be presented for a race free of prohibited substances.

…

(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules.

…

(4) A breach of these Rules under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

…

(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) a fine not exceeding $20,000.00; and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years.

[12] ‘Prohibited substance’ is defined as:

(a) any substance capable of affecting the speed, stamina, courage or conduct of a horse by its actions upon the central or peripheral nervous system, or the cardio-vascular, respiratory, alimentary-digestive, musculoskeletal or urogenital systems;

(b) any substance set out in the Prohibited Substance Regulations;

(c) metabolites, artefacts and isomers of the prohibited substances prescribed by paragraphs (a) and/or (b) hereof.

[13] Included in the Prohibited Substances Regulations is:

2. The following substances when present at less than or equal to the concentrations set out below are exempt from the provisions of paragraph 1(a) and 1(b) hereof:

…

(c) Dimethyl sulphoxide at a mass concentration of 15 milligrams per litre in urine or 1.0 milligrams per litre in plasma.

[14] One matter can be disposed of quickly. There was much evidence before the committee, and in the documents before us, which was reiterated by Ms Thomas in her submissions, that DMSO does not in any way enhance the performance of a horse. The difficulty with such a submission is that DMSO in concentrations of more than 15 mg/L is a prohibited substance. In our view, that is a complete answer to such a submission.

[15] It is clear that the standard of proof in racing discipline hearings is the balance of probability (r 1008A). This is an appeal by way of rehearing. The applicable principles have been summarised by the majority decision of the Supreme Court in Kacem v Bashir: 1

But, for present purposes, the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary. In any event, as the Court of Appeal correctly said, the assessment of what was in the best interests of the children in the present case did not involve an appeal from a discretionary decision. The decision of the High Court was a matter of assessment and judgment not discretion, and so was that of the Family Court.

STRICT OR ABSOLUTE LIABILITY

[16] We turn first to the substantial legal argument as to whether or not the offence was one of strict liability or absolute liability. 

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1   Kacem v Bahir {2010} NZSC 112.

[17] Rule 1008 provides:

1008 In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:-

(a) it shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule; and

(b) any breach of a Rule shall be considered as an offence of strict liability.

[18] Ms Thomas argues that this makes it clear this is an offence of strict liability and the authorities relied on by the respondent have no application. However, Mr Lange for the respondent said there is a clear express provision to the contrary contained in r 1004(4).

[19] It is of assistance to consider the history of this rule as we consider such a course answers that question. The rule can be traced back to the former Drug Negligence Rule 1995 340(4) which reads:

When a horse which has been taken to any racecourse for the purpose of engaging in a race is found by any Judicial Committee to have had administered to it any drug, stimulant or depressant capable of affecting its speed, stamina, courage or conduct, the Trainer and/or any other person who, in the opinion of the Judicial Committee, was in charge of such horse at any relevant time, may be disqualified for any specified period or for life, his licence may be suspended for any specified period or for life and/or he may be fined a sum not exceeding $2000 by the Judicial Committee unless he satisfies them that he had taken all proper precautions to prevent the administration of such drug, stimulant or depressant

[20] In February 1996 the rules were restructured and renumbered. The rule just cited became r 1004, which reads:

(1) Any horse which has been taken to a racecourse for the purpose of engaging in a race which is found to have had administered to it any drug shall be disqualified from that race.

(2) Every owner and/or Trainer person in apparent control of a horse commits a breach of these Rules when a horse has been taken or is to be taken to a racecourse for the purpose of engaging in a race which is found to have had administered to it any drug, unless he satisfies the Judicial Committee that he was not in charge of the horse during the relevant time and that he had taken all reasonable precautions to prevent the administration of a drug.

[21] In 1998 r 1008, which is still in force, came into effect.

[22] On 19 July 2003 r 1004 was amended. The Drug Negligence Rule heading was replaced with the Prohibited Substance Rule, and r 1004, where relevant for present purposes, was introduced in the form set out earlier in this decision.

[23] Mr Lange relied heavily on the decision of Panckhurst J in McInerney v Templeton.2  This was a decision upheld by the Court of Appeal. There, McInerney had been charged with breaches of the Greyhound Rules following two positive swabs for drugs which were in all probability fed in contaminated feed. It was held that the breach had been established regardless of knowledge of fault on the trainer’s part, and this was challenged in the High Court as erroneous in law. The relevant rule was r 138(6) of the Greyhound Rules, which provides:

Where the judicial committee finds that a greyhound taken to any racecourse for the purpose of engaging in any race has had administered to it any drug, stimulant or depressant capable of affecting its speed, stamina, courage or conduct, the owner or trainer or other person who, in the opinion of the judicial committee was in charge of such greyhound, may be disqualified for any specified period or for life, his licence may be suspended and/or he may be fined and if the greyhound is disqualified, the judicial committee shall make the appropriate placings of the other greyhounds affected accordingly.

[24] Importantly, Panckhurst J made the following comments in his decision:

[12] To my mind the scheme of the relevant rules is plain enough. Rule 135(5) is what might be called the administration rule. It is directed to "any person" shown to be complicit in the administration of a performance affecting drug. Involvement in the act of administration, as a principal or party, is the gist of the offence. If a breach is proved the committee may fine and disqualify that person. A proved breach is likely to be viewed very seriously. Rule 138(6), by contrast, is in the nature of a status offence. That is its breach requires proof that the person was "in charge of" the greyhound when it was taken to the race meeting. Of course it must also be established that the greyhound had in fact been administered a performance affecting drug. The person in charge need not be shown to have been involved in the administration; rather it is the fact of being in charge of the dog when it was taken to the race meeting that is the basis for a breach. So viewed, does "administered" in Rule 138(6) necessarily require proof of the act of administration, and, of knowledge of that act? Or is a breach established upon proof of the fact that a performance 7 affecting drug has been administered and the person concerned was in charge of the greyhound when it was taken to the race meeting?

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2 McInerney v Templeton HC Christchurch CP187/98, 10 November 1999.

[13] In my view the phrase "administered to it" is of broad application. I think it well covers both a deliberate administration of a drug, say by injection, and an unwitting administration, say by feeding a dog contaminated meat. But I do not accept that administration necessarily imports a mental element in the context of this rule. A natural reading of Rule 138(6) demonstrates, to my mind, that the proscribed act is that of being in charge of a greyhound which is taken to a race meeting when the fact, or circumstance, of administration of a performance affecting drug to it is also established.

[14] This, I think, is an interpretation in accordance with the spirit of Shorland J's judgment in Tucker. Just as it is not necessary to prove the presence of the drug in a performance affecting quantity, nor is it necessary to prove knowledge against the person in charge of the animal. This reflects the plain purpose of the rule. It is designed to ensure that greyhounds compete on level terms, that no dog has present in its system any drug capable of affecting performance, regardless whether it can be shown performance was indeed enhanced. The utility of the rule would be undermined if in order to establish its breach it was necessary to prove either that the drug was present at a performance affecting level, or to prove the particular act of administration and that the person in charge had knowledge of it.

…

[16] For these reasons I conclude that "administered" in Rule 138(6) conveys and requires proof that something capable of affecting performance as defined has been supplied or given to the animal. Where the substance is not found naturally in the system of a greyhound the presence of any detectable level may suffice. Where the substance is endogenous, proof will be required of a level higher than that which may be naturally produced. But proof of the particular act of administration, or of knowledge on the part of the person charged, is not required.

[25] He concluded at [17]:

In the alternative Mr McVeigh argued that if "administered" did not involve a mental element then at the very least Rule 138(6) should be construed as subject to an all reasonable precautions defence. That is strict liability should apply. Until January 1995 when it was amended, this rule did have an all reasonable precautions qualification. Whether it was validly removed by way of amendment is the gist of the second cause of action, to which I shall turn shortly. But accepting the rule as it is now drafted, I see no basis for importing an absence of fault or due diligence defence. The reasons for that view appear sufficiently from the discussion above concerning my appreciation of the purpose and effect of the rule.

[26] And finally at [19]:

Again the reasons which prompt that view appear largely from the earlier discussion, but I add this to them. Greyhound racing is a significant industry. Considerable sums are expended by the public in betting on greyhounds. It is therefore imperative from the perspective of not only the public, but members of the industry as well, that the sport be perceived as drug free. The power to disqualify any greyhound presented at a race meeting with a detectable level of a non-natural substance, or an abnormal level of an endogenous substance in its system, is essential. That power must be able to be exercised decisively, whenever there is such proof in relation to a substance capable of affecting performance. Public and industry confidence would be impaired if complex issues of proof thwarted the effective functioning of the committee. Likewise, I think it is necessary and reasonable that a judicial committee have power to penalise the person in charge of the greyhound at the time of the meeting. Importantly, as I have already noted, such person may suffer a loss of licence, a fine, or both; or may be subject to no penalty. An open discretion is entrusted to the judicial committee. This means, as Casey J noted in NZ Trotting Conference v Ryan at p 153:

The maintenance of proper standards of conduct is appropriately left to those elected leaders and officials whose experience and standing qualifies them to act as arbiters of appropriate conduct, and to judge whether any act or omission falls short of it.

He was referring to whether conduct amounted to a corrupt practice, but I think the observation has equal application to the imposition of appropriate penalties.

[27] As noted, this matter was appealed unsuccessfully and the Court of Appeal stated at [7]:3

The reason why Mr McInerney has appealed to this Court, notwithstanding three previously unsuccessful arguments, is that he perceives himself as having a “doping conviction” damaging to his reputation and standing in the industry which is unjust when he took all reasonable care. He runs a large-scale greyhound training operation. In the previous racing season he had a total of 568 starts with greyhounds at Christchurch alone with no other reported irregularities. He regards the “conviction” as a serious stain on his character and integrity which leaves him perceived as no different from those convicted of wilfully using drugs in the industry. But that is a wholly unjustified reaction. If, contrary to his contention and as we uphold, the rule is broad enough to capture those who take to a racecourse a greyhound to which has been accidentally administered substances that result in the detection of traces of drugs to which the rules apply, even where all reasonable care has been taken, the rule is one directed to ensuring that the animals race on even terms, not one just directed to intentional doping. (our emphasis).

[28] Ms Thomas sought to distinguish McInerney on three grounds. First, that the history of r 138(6) was materially different from r 1004. She submitted that the introduction of r 1008 meant the ‘all reasonable precautions’ defence in r 1004 was redundant, and no reliance can be placed on its removal. Secondly, the penalties for r 38(6) were entirely discretionary whereas in this case r 1004(8) requires disqualification. On that basis, she argued, the discretionary nature of the penalties in McInerney meant the level of culpability could be assessed at sentencing, and this was an important part in the Judge’s finding that the offending was one of absolute liability. Finally, she said the prosecuting authority has treated r 1004 as a strict liability offence in the way it has prosecuted at least one case post-2003.

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3    McInerney v Templeton CA285/99, 31 Ocotber 2000.

[29] The last point does not assist us in any way in determining whether this is a rule of strict or absolute liability. It is simply the view of the prosecuting authority. In any event we do not see that particular incident as clear cut as Ms Thomas submits.

[30] Secondly, we do not agree with her first submission. In our view the specific removal of the reasonable precautions defence was a conscious and deliberate move. In our view the wording in subclause (4) – “regardless of the circumstances in which the prohibited substance came to be present in or on the horse” – makes it clear that the offence is an express provision contrary to r 1008.

[31] Nor are we persuaded by Ms Thomas’s argument that the penalty regime in McInerney is significantly different from this case. Essentially, what she is arguing is that this could only be an offence of strict liability if there was power not to disqualify a horse (or greyhound, as the case may be) even where there was presence of a prohibited substance. Clearly this would bring both sports into disrespect and could not be countenanced. In our view, the mandatory disqualification is not the imposition of a penalty but is as a consequence of a horse racing with an illegal level of a prohibited substance. Quite properly, there would be outrage if disqualification did not automatically follow.

[32] It is clear from the rule that any penalty imposed for the proved breach is completely discretionary and nothing more needs to be said.

[33] We consider this case to be on all fours with McInerney, and the words cited above at the end of r 1004(4) make it abundantly clear that this is an offence of absolute liability. We concur in the committee’s reasoning and conclusions.

Disclosure

[34] Central to the appellant’s argument was the refusal of QRSC to make disclosure. As with many cases involving urine or blood samples across a broad spectrum, a sample was available to Mr Justice, the person charged. The first was analysed in New Zealand and showed a concentration of 25.8 mg/L. This is well above the allowable level set out in the rule. There are four named laboratories that allow the person charged to send a second sample for analysis. In this case Mr Justice elected to have the sample forwarded to QRSC for analysis. This was clearly his own, informed decision. That report showed a level of 25.2 mg/L. It is to be stressed that this was a laboratory selected by the appellant for analysis of the second sample.

[35] Notwithstanding this fact, the appellant sought disclosure from QRSC. The stance taken by QRSC was that as a matter of practice they decline to provide disclosure as to the methods used by the laboratory on the basis it was not in the public interest to provide disclosure of the kind sought, as it was too great a risk in the ongoing effectiveness to drug control in racing.

[36] The Queensland analyst gave evidence before the committee, but Ms Thomas elected not to cross-examine him, she says on the grounds that without disclosure, no proper cross-examination could take place. That is against a background where the appellant gave notice requiring the analyst to give evidence.

[37] Essentially, the effect of the appellant’s submission is that once an appellant elects to have the second sample analysed by one of the nominated laboratories, the results of that analysis form part of the informant’s case. From that Ms Thomas argued that disclosure is required by the informant. She referred to a number of authorities such as Livingston v Institute of Environmental Science and Research Ltd, Attorney-General v Otahuhu District Court and Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal, all relied upon by the committee in their decision that the informant did not have to disclose QRSC material. 4

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4    Livingstone v Institute of Enviromental Science and Research Ltd (2003) 20 crnz 253(CA); Attorney-General v Otajuju District Court [2001] 3 NZLR 740 (CA); Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 447 (CA).

[38] For the respondent, Mr Lange argued that QRSC was a third party, and relied on the following statements from the majority judgment of the Court of Appeal in Complaints Assessment Committee:

[80] We now move on to consider the position of documents that are not held by the CAC but by third parties. We consider that the complainant falls into this category. She is not a party to the proceedings. She is merely a witness. The CAC has no power to require her to do anything and Chisholm J’s finding that it did is, with respect, erroneous. In this regard, we agree with the reasoning of Chambers J at [123].

[81] The powers of the Tribunal as set out in cl 7 of the First Schedule… however, do apply to the complainant, as does the witness summons procedure discussed at [53] above. We accept Mr Waalkens’ submission that Attorney-General v Otahuhu District Court has no application to the Tribunal’s cl 7 powers given that there are in this context, unlike for the District Court, specific powers dealing with the gathering of information from third parties before the hearing. Incidentally, we note that the position relating to third party disclosure with regard to criminal proceedings will change if the Criminal Procedure Bill 2004 is passed into law. Clauses 39 to 44 of that Bill set out a process by which a defendant may obtain such disclosure.

…

[123] … Chisholm J was wrong, in my view, in saying that the CAC had to go out and obtain relevant records held by third parties and that the complainant was under some sort of obligation to co-operate so that these records could be obtained and then disclosed: at [56]. A prosecutor is under no obligation to locate and gain access to matter in hands of third parties for the benefit of the defence: see November Disclosure in Criminal Cases (1999) at [6.7.3]. And, because of that, it follows that no-one can be compelled to disclose documents which are not in his or her possession or power: Attorney-General v Otahuhu District Court...

[39] We consider that the prohibited substance regulations make it plain that the reserve sample is analysed at the request and on behalf of the owner/trainer. That regulation reads:

Once that request is given, the sample shall be forwarded under the direction of HRNZ’s general manager to the approved laboratory for analysis. Such analysis will be for prohibited substances identified in the original analysis. The results of such analysis shall be returned to the person who requested the analysis and HRNZ simultaneously.

[40] Otahuhu District Court determines that no-one could be compelled to disclose documents not in their possession, and in the criminal context there was an appropriate procedure which was to utilise the witness summons procedure. Such a procedure was available here.

[41] In Livingston there was an application to set aside a witness summons issued in accordance with the decision in Otahuhu District Court. At [62]-[63] the Court stated:

[62] Mr Wotherspoon submitted that as long as a witness summons is issued for the purpose of adducing a document in evidence, even if this is conditional on seeing the contents, a summons should not be set aside. He submitted that there will inevitably in such cases be an element of discovery in any witness summons of this type and points to the decision of Phillips J in R v Clowes (Peter) (No 1) (1992) 95 Cr App R 440; [1992] 3 All ER 440 at p 449; p 448 where he said:

But, where a document is likely to contain material evidence the precise nature of which is not known to a party, the issue of a witness summons by that party is likely to be motivated both by a desire to see the contents of that document and a desire, conditional perhaps upon the precise nature of those contents, to adduce the evidence before the jury.

[63] We do not accept that the witness summons procedure can be used as a means of obtaining discovery of documents held by third parties. It is implicit in the taking out of the summons that the documents ordered to be brought to Court are relevant and otherwise admissible in the proceedings. There is no justification for invoking that procedure to ascertain whether the documents are in fact relevant and otherwise admissible. The party issuing the witness summons must also desire to have the documents adduced in evidence. The desire to adduce them in evidence can be conditional in the sense described by Phillips J but, as we have stressed, the documents must be admissible. We have held that it has not been shown that the manuals are relevant to the appellants’ cases. This means that they could not be adduced in evidence. It follows that the witness summonses were not issued for a proper purpose.

[42] The committee made comments that may suggest this procedure was not available. We do not agree. It was open to the appellant to demonstrate the documents were relevant and admissible in the Livingston sense. But it was the appellant’s decision not to make application under the witness summons procedure.

[43] I

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No penalty

hearing_type: Non-race day

Rules: 1004(1)( and (2)

Informant: Mr LJ Justice

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PersonPresent: Ms MJ Thomas and Mr R Donnelly for Appellant, Mr CJ Lange for Respondent

Respondent: Racing Integrity Unit

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