Non Raceday Inquiry RIU v A J Pyers 12 March 2013 – Decision dated 27 March 2013

hearingid: fd7c55f1b8257f4849c5d70d3d42c353

informantnumber: A2853

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decisiondate: 26/04/2013

hearing_title: Non Raceday Inquiry RIU v A J Pyers 12 March 2013 - Decision dated 27 March 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE JUDICIAL CONTROL AUTHORITY

AND IN THE MATTER of the NZ Rules of Harness Racing

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

Informant

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

Respondent

Information No: A2853

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

Present: Mr R Carmichael – Chief Race Course Inspector, Mr AJ Pyers - Respondent, Mr AJ Ryan – Counsel for Mr Pyers

Registrar: None

Plea: Not Admitted

Venue: Cambridge Raceway

Date of Hearing: 12 March 2013

Date of Decision: 27 March 2013

DECISION OF JUDICIAL COMMITTEE
Charge:

[1] The Respondent Licenced Trainer / Horseman, Mr AJ Pyers, faces the following charge:

That between the 11th day of January 2013 and the 21st day of January 2013, Allen John Pyers, being a Licenced Person, did misconduct yourself within the meaning of Rule 303(2) of the Rules of Harness Racing in that you, by way of text messages and telephone calls, you did write or utter abusive and offensive words, as particularized hereunder, towards Thomas Rodney Carmichael, a Racing Investigator, and that you are therefore liable to the penalty or penalties that may be imposed upon you pursuant Rule 1003(1) of the Rules of Harness Racing”.

[2] Rule 303(2) provides:

“No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.”

Rule 1003(1) provides:

“A person who commits a reach of any Rule shall (subject to the provisions of Rule 111(1), 113(5), 451(3), 507(4), 1001 or 1004 hereof) shall be liable to the following penalties:

(a) A fine not exceeding $10,000.00; and/or

(b) Suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c) Disqualification for a period not exceeding 12 months.

In addition to or in substitution of any penalty imposed pursuant to sub-rule(1) hereof, any horse connected with the breach of the Rule may be scratched or disqualified from any race and/or disqualified for a period not exceeding 12 months.”

[3] The particulars of the text messages and telephone calls the subject of the charge were provided to the Committee.

[4] Mr Pyers acknowledged that he understood the Rules.

Evidence of Mr Carmichael:

[5] Mr Carmichael produced written authority from the General Manager of the Racing Integrity Unit to lodge the Information charging Mr Pyers with a breach of Rule 303(2).

[6] Mr Carmichael then gave evidence. He said that he tried to contact Mr Pyers on the 2nd December 2012 concerning a certain complaint made against him arising out of the workouts run by the Morrinsville Trotting Club on the 24th November 2012.

[7] Mr Carmichael then gave evidence about responses from Mr Pyers by way of text messages that were abusive to Mr Carmichael, as well as telephone calls up to the 27th of January 2013. The text messages and telephone calls, essentially contained wording that was abusive towards Mr Carmichael, and those text messages and telephone calls, also contained offensive language not only towards Mr Carmichael but also to one or two other people.

[8] Mr Carmichael produced as exhibits copies of the text messages and also records of the content of at least two telephone calls and also his mobile phone log, showing calls received from Mr Pyers.

[9] By way of cross-examination Mr Carmichael was asked if he had been given a copy of a medical certificate relating to Mr Pyers. He acknowledged receiving that.

[10] Mr Carmichael was then asked if the medical certificate alters his attitude towards Mr Pyers in respect to calls that he made on the 11th and 12th January. Mr Carmichael said that it did not alter his attitude because of calls that Mr Pyers had made to other people and subsequent calls to him.

Evidence of Allen Pyers:

[11] Mr Pyers said that in early January 2013 he had a received a telephone call from Mr Carmichael, saying that he wanted to inspect Mr Pyers’ stables. An arrangement was made for that purpose.

[12] Mr Pyers said that when they met, it turned out that Mr Carmichael was not inspecting the stables at all, but had come to serve papers on him for the other charge that Mr Pyers was facing. Mr Pyers thought arrangements had been made to serve those papers on him at Mr Ryan’s office. Mr. Pyers said he thought he had been deceived or misled and he reacted spontaneously once the papers were going to be served.

[13] Mr Pyers also gave evidence about going to the Morrinsville Medical Centre on the 9th of January and seeing a Doctor who was a Locum for his normal GP. The doctor prescribed a drug called Gabapentin and he said he thought that these were painkillers for his back problems. Mr Pyers said he had never taken this drug before and it had clearly had a serious affect on him.

[14] Mr Pyers produced a letter of instruction from Unichem Morrinsville which set out (among other things) that the medicine was used to control certain types of epilepsy. Mr Pyers also produced a medical report from the Morrinsville Medical Centre which stated that Mr Pyers’ back pain from an old injury was not being alleviated by existing medication and that Gabapentin was trialed. It was stated that this was not an unreasonable course of action for this condition, but it also stated that Mr Pyers was not, at that time, aware of any side effects from the medication.

The Report did note that hostility and emotional labiality were listed as (uncommon) side effects of the drug.

[15] Mr Pyers then said that he had diminished responsibility as a result of the medication and this was affecting him on the 11th and 12th of January.

[16] Mr Pyers said he took the capsules as prescribed and that they were meant to make him drowsy, but in fact made him hyperactive and that is one of the reasons why he was upset when he met with Mr Carmichael at this stables.

[17] Mr Pyers then told the Committee that he had previously had an incident with Mr Carmichael in 2008 in relation to swabbing a horse of his and he said he was upset at the time and he made that clear to Mr Carmichael. He suggested that this was part of the reason for his behaviour towards Mr Carmichael.

[18] Mr Pyers then gave evidence of some issues relating to the Morrinsville Trotting Club and also to his licence. These were not in the Committees view relevant when dealing with the present charge.

[19] Mr Pyers said that in respect to the telephone call on the 21st January 2013, he did not recall the precise message that he left, but he said he was still smarting under what he considered to be unfair treatment from Mr Carmichael whom he thought was there to help him rather than do otherwise.

[20] Mr Pyers said he realizes now that he should not have used the language that was alleged to have been used and he did offer an apology to Mr Carmichael.

[21] Under cross-examination Mr Carmichael questioned Mr Pyers about the incident between him in 2008. Mr Carmichael questioned Mr Pyers’ recollection of the timing in respect to that incident.

Submissions by Mr Carmichael:

[22] Mr Carmichael submitted that the nature and wording of texts between the 11th and the 21st of January 2013 were not contested.

Similarly, the existence of and wording of the telephone calls was not contested. He submitted that collectively they amounted to misconduct.

[23] Mr Carmichael then dealt with the argument raised by Mr Ryan concerning the medication taken by Mr Pyers. Mr Ryan has produced a Medical Certificate. Mr Carmichael submitted that the Certificate is in broad terms and has not been tested by cross-examination. In Mr Carmichael’s view the Certificate should have been backed up with substantial and probative evidence.

[24] Mr Carmichael also said that the texts from Mr Pyers were not dissimilar to those he sent to others in the industry, although in the case of one person, the text were part of a series of texts between Mr Pyers and that person.

[25] Mr Carmichael said that no proper evidence had been produced to show that the medication taken by Mr Pyers was the cause of his conduct.

[26] Mr Carmichael submitted that Mr Pyers was guilty of misconduct.

Submissions by Mr Ryan:

[27] Mr Ryan referred to the evidence given by Mr Pyers and then to the Medical Report and also the Chemist’s information concerning the medication that had been produced by Mr Pyers.

[28] Mr Ryan submitted that it was quite clear that during the time that Mr Pyers was making the texts and telephone calls to Mr Carmichael, particularly on the days of the 11th and 12th of January 2013, that he was acting under the influence of the medication and therefore had diminished responsibility.

He pointed to the side-effects of the medication and Mr Pyers’ evidence that he was suffering as a result of the medication and was not completely aware of what he was doing.

[29] Mr Ryan also submitted that the circumstances surrounding the supposed “stable inspection” and the incident in 2008 had caused Mr Pyers to become easily upset with the actions of Mr Carmichael and to think that he was not being treated fairly.

[30] Mr Ryan’s submission was that, although Mr Pyers had sent the texts and had also made the telephone calls, because of his diminished responsibility he is not guilty of the charge.

Reasons for Decision:

[31] The Committee has listened to and reviewed the evidence presented to us. We have to say that the evidence is fairly compelling in that we have been provided with copies of the texts complained about and also transcripts of the telephone calls.

The nature of the words used by Mr Pyers could not be construed as anything other than offensive.

[32] Mr Ryan has submitted to us that Mr Pyers was acting under “diminished responsibility” as a result of his medication and that accordingly he is not guilty of the charge. We do not agree. Mr Pyers may well have been suffering some effects of medication upon or about the 11th and 12th of January but this in itself does not excuse him from making the texts and the telephone calls to Mr Carmichael. Drowsiness from medication does not necessarily affect intent. We also note that those texts and telephone calls continued on to at least the 21st of January 2013. Mr Pyers also sent texts of a similar nature to various other persons.

[33] Diminished responsibility may well go towards mitigation of penalty but it does not relieve Mr Pyers from the charge that he is facing.

[34] Our view is that Mr Pyers intentionally set out on the course of action that he undertook because he was upset with Mr Carmichael and he vented his anger on him by the use of texts and telephone calls.

[35] Those were abusive texts and telephone calls and as such it is our view that the charge against Mr Pyers is proven.

Decision:

[36] The charge against Mr Pyers is upheld.

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Submissions as to Penalty and Costs:

[37] The informant is given seven (7) days from the date of receipt of this Decision to make submissions as to penalty and costs. A copy of those submissions is to be forwarded to Mr Ryan as Counsel for Mr Pyers.

[38] My Pyers and Mr Ryan have seven (7) days from receipt of those submissions to present their submissions as to penalty and costs.

Dated this 26th day of April 2013

hearing_type: Non-race day

Rules: 303(2)

Informant: Mr R Carmichael - Chief Race Course Inspector - Racing Integrity Unit

JockeysandTrainer:

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

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

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