Appeal R J Dunn, J R Dunn and C T Smith v RIU – Decision dated 21 February 2017 – Chair, Mr A Harper

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hearing_title: Appeal R J Dunn, J R Dunn and C T Smith v RIU - Decision dated 21 February 2017 - Chair, Mr A Harper

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Decision:

In The Matter Of The New Zealand Rules Of Harness Racing

And In The Matter Of An Appeal Before An Appeal's Tribunal Of The Judicial Control Authority For Racing Under The Racing Act 2003

Appeal Tribunal: Mr Alan Harper and Mr Russell McKenzie

Appellants: Mr Robert John Dunn, Mr John Robert Dunn and Mr Craig Thomas Smith

Respondent: Racing Integrity Unit

Counsel for the Appellants: Mr Paul Dale

Counsel for the Respondent: Mr Barnaby Hawes

Decision of Appeals Tribunal given in writing this 21st day of February 2017.

1. Introduction

1.1 This is an appeal by the Appellants Robert John Dunn ("Robert Dunn"), John Robert Dunn ("John Dunn") and Craig Thomas Smith ("Craig Smith") against the penalties imposed by a non-race day Judicial Committee by written decision dated 16 January 2017.

1.2 On 23 June 2016 the Forbury Park Trotting Club conducted a race meeting at the Forbury Park Racecourse in Dunedin. Race 8 on the event was won by the horse Melina Lowe. Following that race the horse returned a positive test to the prohibited substance Ketoprofen.

1.3 Following the positive test the Racing Integrity Unit (RIU) conducted further enquiries.

1.4 Following those enquiries charges were laid against the Appellants . They were all charged with a breach of Rule 1004(5) of the New Zealand Rules of Harness Racing. That rule reads:

"No person shall unless they have first obtained the permission of a Stipendiary Steward or Racecourse Inspector have in their possession either at a race meeting or in any motor vehicle, trailer or float being used for the purpose of travelling to or from a race meeting any prohibited substance".

1.5 Further discussions were held and the charges were amended. The amended charges against Robert Dunn and John Dunn were they had together abetted Craig Smith to have in his possession at a race meeting a prohibited substance . This being Ketoprofen. Robert Dunn and John Dunn were charged under Rule 1002(1)(h). That rule reads:

"Every person commits a breach of these rules who:

Abets any person in the commission of a breach of these rules".

1.6 Mr Smith was charged under Rule 1004(5). All parties pleaded guilty to the respective charges.

1.7 At the hearing Robert Dunn was fined the sum of $4,000.00, John Dunn was fined the sum of $2,000.00 and Craig Smith was fined the sum of $2,000.00.

1.8 The Appellants appeal against those penalties.

1.9 At a preliminary telephone conference all of the parties were in agreement the appeal could be heard on the papers therefore avoiding the need for a formal hearing.

1.10 Mr Paul Dale Counsel for the Appellants filed submissions. These were responded to by Mr Barnaby Hawes as Counsel for RIU with Mr Dale having a right of reply.

1.11 The appeal will be dealt with by way of rehearing. We must form our own opinion although at the same time should not lightly interfere with the decision which is appealed against.

2. The Position of the Appellants

2.1 The grounds for the appeal are:

1. A breach of natural justice.

2. The penalty was manifestly excessive.

3. There is a gross disparity to the fine of $250.00 imposed on the trainer of Melina Lowe.

3. Ground 1 - Breach of Natural Justice

3.1 The Appellants allege the Judicial Committee tacitly and or by implication gave an inference that the Appellants were responsible for the positive test in Melina Lowe. There is further reference by the Appellants to the manner in which the Judicial Committee dealt in its decision in relation to the penalties imposed on the Appellants and also the penalty imposed on Mr Kirk Larsen who was the trainer of Melina Lowe.

3.2 The submission therefore was to the effect the Appellants had been denied natural justice by the Judicial Committee by giving an inference that the Appellants may in some way have been responsible for the positive test when there was no evidence to suggest that.

3.3 There is considerable reference as to the status of an agreed summary of facts and also a guilty plea based on those summary of facts.

3.4 We were referred to Case Law and also a Law Commission report.

3.5 They allege a link between the two prosecutions both on the basis upon which they were heard and referenced in the decision meant the Appellants were denied the opportunity to test the inference which was allegedly adopted by the Judicial Committee.

4. Ground 2 - Manifestly Excessive

4.1 The Appellants maintain the penalties which were imposed on them were manifestly excessive when compared to the penalty which was imposed on Mr Larsen.

5. Ground 3 - Gross Disparity

5.1 This ground is really an extension of the second ground that there was a significant disparity between the penalty imposed on Mr Larsen and the Appellants.

5.2 In support of the submissions Mr Dale referred us to a number of previous JCA decisions. These decisions included:

RIU v J Clementson;

RIU v PM Williamson;

RIU v CD Edmonds and AD Edmonds;

RIU v JM Howe.

6. The Position of the Respondents

6.1 Mr Hawes in his submissions pointed us in the direction of Green v Green (2016) NZCA 486 where the Court of Appeal detailed the manner and legal principles in relation to a general right of appeal.

6.2 Needless to say this Tribunal accepts and agrees with the manner in which this appeal is to be determined having regard to the principles detailed in that decision.

6.3 Mr Hawes detailed the factual background and was of the view the penalties were within the acceptable range which was available to the Judicial Committee. He particularly endeavored to distinguish RIU v Clementson on the basis the penalties had increased since the hearing of that particular matter.

6.4 He also submitted there had been no breach of natural justice because he pointed out the Judicial Committee had on a number of occasions detailed the impossibility of determining how the prohibited substance came to be in Melina Lowe.

6.5 He also submitted the Judicial Committee was correct to regard the offences as serious given the outcome of Melina Lowe being disqualified from the race due to racing with a prohibited substance.

7. Right of Reply

7.1 Mr Dale exercised his right of reply where he once again emphasized the basis of the appeal which has been detailed in paragraph 2.1. of this decision.

7.2 He also went on to reinforce the inability of the Appellants to reconcile the penalties which were imposed on them as opposed to the penalty imposed on Mr Larsen.

8. Discussion

8.1 The Tribunal has carefully considered the most helpful written submissions. As indicated we were able to determine this appeal on the papers.

8.2 We are of the view it is incumbent upon on us to deal solely with the issue which is before us. Robert Dunn and John Dunn pleaded guilty to a charge and a Judicial Committee imposed a penalty. Craig Smith also pleaded guilty to a charge and the Judicial Committee imposed a penalty.

8.3 The Appellants appeal against those penalties and as we are required to do in an appellate jurisdiction we are required to deal with this by way of a rehearing and form our own opinion. Whilst it is open for the Appellants to make submissions to us having regard to penalties imposed on other matters we are of the view we must deal solely on the matter of penalties imposed on the Appellants.

8.4 There is no starting point available to us in the Penalty Guide.

8.5 The penalty provisions in relation to the charges against Robert Dunn and John Dunn and also Mr Smith come under the general penalty provisions of Rule 1003(1). It was clear the parties accepted the appropriate penalty was a fine and there does not appear to have been any suggestion any of the penalty options under sub clauses (b) or (c) should be considered.

8.6 We therefore give consideration to an appropriate starting point given there is no reference in the Penalty Guide.

8.7 In the Penalty Guide and under the heading of Prohibited Substances there is a reference to a fine of $8,000.00 for a first offence under the presentation offences. Under the presentation offences there is a maximum fine under the rules of $20,000.00. This is Rule 1004(7)(a). Possession is a less serious offence than administering or presentation.

8.8 Given the maximum fine is $10,000.00 under Rule 1003(2) we have determined the appropriate starting point to be half that for an offence under Rule 1004(7)(a). Therefore we adopt a starting point of $4,000.00.

8.9 The Judicial Committee imposed a fine of $4,000.00 on Robert Dunn and $2,000.00 on each of John Dunn and Craig Smith.

8.10 It is therefore appropriate to deal with each Appellant individually. We do so on the basis that although there was one set of facts each of the Appellants has his own level of responsibility in relation to the charges which were laid against to them and to which they entered guilty pleas.

8.11 Robert Dunn is the licensed trainer. He resides in Auckland but is the trainer at both his Auckland stable and also the Woodend stable. He is the most senior of the Appellants. He has two previous matters dealing with prohibited substances but given the length of time from the previous breach we do not consider that to be either an aggravating or mitigating factor.

8.12 We do not see any aggravating factors. We should however take into account his guilty plea and also cooperation in applying a discount from our starting point.

8.13 From a starting point of $4,000.00 and allowing the relevant discount we determine an appropriate fine to be $3,000.00.

8.14 John Dunn is not the licensed trainer but he does manage the Woodend operation of the stable. He was the one who gave instructions to Craig Smith to take Ketoprofen to the course although like Robert Dunn he was not present on the particular evening.

8.15 We start at a $4,000.00 fine and take into the account the same factors as we did for Robert Dunn being the early plea of guilty and also the level of cooperation. He is also a first offender.

8.16 Given he is not the licensed trainer he has a lower level of culpability to Robert Dunn and therefore taking those discounts into account we would determine an appropriate level of fine to be $1,500.00.

8.17 Craig Smith pleaded guilty to a different charge to that of Robert Dunn and John Dunn. He was the party who took Ketoprofen to the racecourse without obtaining the necessary approvals and he has pleaded guilty to the charge. He is a licence holder as a junior horseman and does have responsibility in this regard although he was acting under instruction from John Dunn.

8.18 Although dealing with a different charge we again take a starting point of $4,000.00 and allow the same discounts as John Dunn. We also have a view he has a slightly lesser responsibility than John Dunn as he was acting under instruction from John Dunn. Accordingly we determine an appropriate level of fine would be $1,000.00 for Mr Smith.

9. Decision

9.1 For the reasons we have detailed we believe the Judicial Committee imposed fines which were excessive in the circumstances . We allow the appeal to the extent the fines which were imposed by the Judicial Committee are substituted as follows:

(a) On Robert Dunn the sum of $3,000.00.

(b) On John Dunn the sum of $1,500.00.

(c) On Mr Craig Smith the sum of $1,000.00.

10. Costs

10.1 We invite both Counsel to make submissions to us in relation to costs. Please let us have those submissions within seven days of the date of receiving this decision.

Dated this 21 February 2017

Alan Harper Chairman

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