Non Raceday Inquiry RIU v J McInerney Jnr 17 December 2015 – Decision dated 4 January 2016 – Chair, Mr R McKenzie

hearingid: de9a2b329595bc78aab20c2423180884

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 06/01/2016

hearing_title: Non Raceday Inquiry RIU v J McInerney Jnr 17 December 2015 - Decision dated 4 January 2016 - Chair, Mr R McKenzie

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH

IN THE MATTER of Information Nos. A6344,
A6345 & A6346

BETWEEN J M McLAUGHLIN,
Stipendiary Steward for the
Racing Integrity Unit

Informant

AND JOHNATHON McINERNEY Licensed Person

Respondent

Date of Hearing: Thursday, 17 December 2015

Venue: Judicial Room, Addington Raceway, Christchurch

Judicial Committee: R G McKenzie (Chairman) - S C Ching (Committee Member)

Present: Mr J M McLaughlin, the Informant - Mr J McInerney jnr, the Respondent - Mr J T McInerney, Licensed Trainer, Lay Advocate
Mr N G McIntyre, Registrar

Date of Decision: 4 January 2016

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY

The Charges

[1] Mr McInerney faced three charges arising out of the meeting of Christchurch Greyhound Racing Club held at Addington Raceway on 26 November 2015.

1. Information No. A6344 alleged that Mr McInerney committed a breach of Rule 87 (1) p. of the Greyhound Racing New Zealand Rules of Racing in that:

[He] failed to comply with an order of a Steward by refusing to immediately remove [his] dog HOMEBUSH RUFUS from the track after it had been declared a late scratching.

2. Information No. A6345 alleged a breach of Rule 887.1.dd in that:

[He] failed to comply with the Board’s Mobile Phone Regulation by using it while handling HOMEBUSH RUFUS at the staring boxes.

3. Information No. A6346 alleged a breach of Rule 87.1.o in that:
[He] misconducted himself by slamming the door when asked to leave the Steward’s Room.

[2] Mr McInerney was present at the hearing of the Informations and he confirmed that he denied the charges in Information Nos. A6344 and A6346 and that he admitted the charge in Information A6345. Mr J T McInerney, Licensed Trainer, was also present at the hearing of the information, acting as Lay Advocate for Mr McInerney jnr.

The Rule

[3] Rule 87.1 provides as follows:
Any person (including an Official) commits an offence if he/she:
o. has, in relation to a Greyhound or Greyhound racing, done a thing, or omitted to do a thing which is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct:
p. disobeys or fails to comply with the lawful order of a Steward or other Person having official duties in relation to Greyhound racing:
dd. fails to comply with any policy, restriction or guideline punishable by a fine of $300.00 or less.

In relation to Information No. A6345, the Board’s Mobile Phone Policy provides as follows:
The usage of mobile phones by handlers at race meetings is prohibited during the parading of dogs and anywhere on the racetrack pre or post-race. Phones must be switched off at all times in the abovementioned situations. Mobile phones can however be switched on again for usage after all relevant post-race procedures (e.g. swabs, etc) have taken place.

INFORMATIONS Nos. A6344 and A6345

[4] Mr McLaughlin presented the following Summary of Facts:

“Prior to Race 4, and after stir up, HOMEBUSH RUFUS slipped the lead and ran away from handler, Mr McInerney. (Video evidence showed this happening 3:30 prior to start time).

HOMEBUSH RUFUS ran to the starting boxes and then back to the lure. Stewards radioed starter, Mr J Smith, and asked if the greyhound had been on the lure as their live view of the lure stationary point for 295 metres races is obstructed by the camera room positioned on Twiggers Stand. Mr Smith confirmed that HOMEBUSH RUFUS had been on the lure. “Trackside” footage showed HOMEBUSH RUFUS was on the lure for 20 seconds before being recaptured by handler, Mr McInerney. Mr McInerney, at no time, showed any urgency to get HOMEBUSH RUFUS off the lure.

Stewards, after seeing video coverage of the incident, had HOMEBUSH RUFUS checked by the Club’s veterinarian. HOMEBUSH RUFUS was cleared from injury. Stewards then informed starter, Mr Smith, HOMEBUSH RUFUS was to be scratched. Mr McInerney had, by this time, taken HOMEBUSH RUFUS to the starting boxes and was standing directly behind them. This was not the normal pre-race position for Mr McInerney. Mr Smith relayed to the Stewards that Mr McInerney refused to accept the scratching of the dog and would not leave the starting area. Stewards again informed the starter that HOMEBUSH RUFUS was scratched.

Mr McInerney then contacted the Stewards by way of the starter’s radio and wanted to know what Rule he was scratched under. Stewards informed Mr McInerney that the runner HOMEBUSH RUFUS was scratched by order of the Stewards. The Stewards again informed the starter that Mr McInerney’s runner was scratched and was to leave the starting area.

At this stage, Mr McInerney is still behind the boxes and takes his phone out of his pocket.

Raceday Control scratch HOMEBUSH RUFUS and commentator, Mr Trevor Wilkes, makes an announcement for “Trackside” viewers and on-course patrons. Mr McInerney is still behind the boxes at this stage.

Stewards again inform the starter that HOMEBUSH RUFUS, is scratched and Mr McInerney vacates the track area and further holds up the start when asking the starter to hold the start while he makes his way back to the kennels”.

[5] Mr McLaughlin then showed to the hearing video coverage of the few minutes leading up to the start of the race. He showed HOMEBUSH RUFUS get loose from Mr McInerney (3:18 before start time) and run back to the lure (3:00). At no stage did Mr McInerney make any urgent effort to retrieve the dog. When Mr McInerney caught the dog he gave it a pat and put its collar on (2:40). At 1:30 approximately, Mr McInerney came back into shot and moved to behind the boxes. The starter had called the others over to the boxes. The handlers of the other runners were in a “state of limbo”, he said. The starter was on the phone to Mr McLaughlin telling him that Mr McInerney was refusing to leave. At that point, Mr McInerney could be seen to take his phone from his pocket. At nearly on start time, Mr McInerney placed the collar and lead on the dog.

[6] Mr McLaughlin said that when he gave the “one-minute call”, Mr McInerney was still on the phone, with the dog being held by another of the handlers. He then proceeded to walk off the track with the dog. Mr McInerney asked the starter to hold boxing the other runners until he had left the track. The race started 2 minutes after the scheduled start time, Mr McLaughlin said.

[7] Mr McLaughlin called the starter, Mr James Douglas Smith, to read the following statement of his evidence:

“At approximately 1.00pm on Thursday, 26 November 2015, I had taken a group of handlers and dogs out for a stir up prior to Race 4. As I neared the track, I noticed that the number 3 dog, HOMEBUSH RUFUS, was loose and running on the track. It first went over to the 295 metres boxes then came back and immediately went on the lure. The handler, John McInerney, attempted to call the dog back at all times. When taken off the lure, a request for a vet check was carried out. At no time did I see how the dog got loose.

Whilst HOMEBUSH RUFUS was being vet checked, I led the remaining dogs and handlers over to the 295 metres boxes. On the way, I heard one of the handlers complaining that HOMEBUSH RUFUS had acquired an unfair advantage by attacking the lure pre-race.

At the sprint boxes, I received instructions from Jeff McLaughlin, Stipendiary Steward running the meeting, to inform John McInerney that his dog HOMEBUSH RUFUS had been scratched from Race 4. John stated that it was not scratched and that he was running his dog in the race as it had a clearance from the vet check. I informed Jeff McLaughlin that John refused to take his dog out of the race. Jeff again got me to inform John McInerney that his dog was scratched from that race and again John refused to stand down. John then had a short conversation with Jeff via my portable radio, and again he was warned. It was at this point that John stood in front of the boxes, pulled out his phone and stated that he was calling his boss. I asked John if he could shift as I had to load Race 4 with the remaining seven dogs. Eventually, he moved over to a grassed area, had a short conversation on his mobile phone, then moved away towards the kennel block. On the way, he requested that I not start the race until he was in the kennel block. As John moved away I started Race 4.”

[8] In response to a question from Mr J T McInerney, Mr Smith said that it was good, safe practice to not start a race while there was a greyhound on a lead in the vicinity. He said that Mr McInerney was back in the kennel block before the race started. Mr Smith also agreed that it was best to not run after the dog once it had got loose.

[9] Mr Smith confirmed that Mr McInerney, once he had caught the dog, had followed the rest of the field to the boxes and stood behind them.

[10] Mr J T McInerney said that Mr McInerney jnr had tried to establish why the dog, after having been cleared by the veterinary surgeon, was not permitted to start in the race. He said that, in all his years of training, he had never had a dog that had got loose before the start scratched after being cleared by the vet.

Discussion

[11] The Committee explained to Mr McInerney that the issue before it was whether there had been a lawful order of the Stipendiary Stewards with which Mr McInerney had failed to comply. The Committee was not required to enquire and determine whether Mr McLaughlin’s decision to scratch HOMEBUSH RUFUS was made on valid grounds.

[12] Mr McInerney jnr said that he had been confused by the Stewards’ decision to scratch the dog after it had been cleared by the vet, as in this case. When he was first informed of the order of the Stewards, he did not understand why, because this had not happened before. He was not aware that the Stewards had the right to scratch in those circumstances.

[13] It was explained to Mr McInerney jnr that the Stewards had the power under the Rules to scratch a dog, at their discretion, for any reason. On this occasion, the greyhound was scratched for reasons of animal welfare, Mr McLaughlin said.

[14] Mr J T McInerney told the Committee that Mr McInerney jnr had kept the dog on the track because he did not understand that Stewards had the power to scratch it.

[15] Mr J T McInerney stated that it was his understanding that, once a dog has been checked and cleared by the veterinary surgeon, it was cleared fit to race. It was for that reason that he had phoned Mr McInerney jnr at the time to enquire what had happened.

[16] Mr McInerney said that, it having been explained to him that the Stewards have the power to late scratch a greyhound and that their exercise of that power has to be complied with, he accepted that Mr McInerney jnr had failed to comply with such order on this occasion.

[17] Mr McInerney jnr then indicated to the Committee that he wished to change his plea and that he wished to admit the charge.

[18] Mr McInerney jnr having admitted both charges, those charges were found proved.

Penalty Submissions of the Informant (Information No. 6344)

[19] Mr McLaughlin informed the Committee that this was Mr McInerney’s second breach of the Rule having previously breached it in August 2014 when he was fined the sum of $300.00. On this occasion the incident had been shown on “Trackside” and was a poor look for greyhound racing. He submitted that a fine of not less than $750 was appropriate.

Penalty Submissions of the Informant (Information No. 6345)

[20]Mr McLaughlin said that this was not simply a case of Mr McInerney jnr’s phone having rung at the boxes – he had actually taken it from his pocket, answered it and had a conversation on it while being shown on “Trackside”.

[21] Had Mr McInerney admitted the breach on the day, Mr McLaughlin said, he would have been issued with a Minor Infringement fine of $300. He was not submitting for a higher fine than that since Mr McInerney had admitted the breach at the hearing.

Penalty Submissions of the Respondent

[22] Mr McInerney jnr said that he answered the call from his father who was watching the events on “Trackside” and was anxious to know what was happening. Mr J T McInerney said that the dog had been 4th favourite and had been denied the opportunity to race for a stake.

[23] Mr J T McInerney admitted that a “mistake had been made”, through not having the information as to why HOMEBUSH RUFUS had been late scratched.

Reasons for Penalty

[24] When the information was served on Mr McInerney jnr on raceday, he notified the Stewards that he intended to deny the charge. He maintained that position at the outset of this hearing but, at the conclusion of the Informant’s evidence and in the course of his presenting his defence to the charge, he requested leave of the Committee to change his plea and admit the charge.

[25] It became clear to the Committee during the course of the hearing that Mr McInerney jnr’s defence to the charge was based on a misunderstanding that it was a defence to the charge if it could be shown that the Stewards’ decision to late scratch HOMEBUSH RUFUS was not made on valid grounds. It was explained to him that that was not the issue that the Committee had to determine but rather whether he had failed to comply with a lawful order of the Stewards. Mr McInerney accepted that that a lawful order had been given and that he had failed to comply with it and, on the basis of the explanation, he then elected to change his plea and admit the charge.

[26] Mr McInerney’s change of plea was made at a late stage but, nevertheless, he is entitled to credit for that. It is a mitigating factor that we have taken into account. Furthermore, the Committee is prepared to accept that Mr McInerney jnr’s original failure to comply with the direction to remove the greyhound from the track was not an act of deliberate defiance but rather the result of confusion and misunderstanding. We accept his explanation that he believed that, the greyhound having received a clearance from the veterinarian, was cleared to start in the race. He now accepts that it was a decision for the Stewards, and not the veterinarian, as to whether the dog should start in the race but he did not understand this at the time.

[27] An aggravating factor is that Mr McInerney has previously breached this Rule. However, the circumstances of the previous breach were, the Committee is aware, somewhat different from the present case. While that previous breach of the Rule is an aggravating factor, we are satisfied that the present breach does not show a pattern of behaviour by Mr McInerney.

[28] Mr McLaughlin has submitted that an appropriate penalty would be a fine of not less than $750. That submission would take into account the previous breach. We have, therefore, taken that submission as a starting point for determining penalty. Mr McInerney is entitled to a discount for his change of plea, albeit a belated one, and the circumstances of it as referred to above. We fix that discount at $200.00.

[29] In relation to the charge of failing to comply with the Board’s Mobile Phone Regulation, the Committee could see no good reason for departing from the fine that would have been imposed on the day under the Minor Infringement System for failing to comply with a policy of the Board.

Decision on Penalty

[30] On the charge of failing to comply with a lawful order of the Stewards, Mr McInerney jnr is fined the sum of $550.00

[31] On the charge of failing to comply with the Board’s Mobile Phone Regulation, Mr McInerney jnr is fined the sum of $300.00.

INFORMATION No. 6346

[32] Mr McLaughlin presented the following statement:

“Mr McInerney had come to the Stewards` Room earlier in the day with Ms Kirsty Taylor and was told that Stewards could not deal with the Race 4 matter at that time. Mr McInerney had asked about another matter to do with Mrs Smith and was told it was not for discussion. Mr McInerney informed the Stewards that he had runners in most races and it would be likely to be after the last race before he could avail himself to the Stewards.

Stewards accepted Mr McInerney’s busy schedule and acceded to his request informing Mr McInerney in that they would see him after the last race. Mr McInerney came back to the Stewards’ Room shortly after Race 12 and was informed that the Stewards` were still reporting Race 12 and he was to leave the room and wait outside. Stewards would call him when they had finished the day’s proceedings. Mr McInerney was asked to leave the Stewards’ Room and on leaving slammed the door.

Stipendiary Stewards J McLaughlin and S W Wallis were present”.

[33] Mr McLaughlin then called Mr S W Wallis, Stipendiary Steward, to give evidence. He said that Mr Wallis was present in the Stewards’ Room when Mr McInerney jnr left the room and which gave rise to the charge of misconduct.

[34] Mr Wallis said that Mr McInerney jnr had been asked to leave the room as Mr McLaughlin was not ready for him at that time. Mr McInerney made a comment along the lines of “this is like musical chairs” as he ascended the stairs from the room to the corridor and “quite forcefully” pulled that door behind him. Mr Wallis acknowledged that the door was inclined to slam shut from time to time but the noise, on this occasion, was louder than normal. Mr Wallis said that Mr McLaughlin then asked him to call Mr McInerney back into the room.

[35] Mr McInerney jnr said that he had gone to the Stewards Room seeking an explanation for the late scratching of HOMEBUSH RUFUS in Race 4 earlier in the day. He had gone there after Race 11 and was told to come back after Race 12, which he accepted. He had entered the room with Mr Wallis and sat down. Mr McLaughlin then asked him to leave the room, Mr McInerney jnr said.

[36] Mr McInerney jnr said that he left the room when asked by Mr McLaughlin. The two windows in the room were both open and it was a very windy day, he said. The door shut a little bit harder than normal. He was summoned back into the room by Mr Wallis at Mr McLaughlin’s request. He came straight back in and sat down. He was chided for slamming the door and sent back out, he said. He left and waited approximately 8 minutes before being called back into the room, by Mr Wallis.

[37] Mr McInerney jnr denied that he had slammed the door, despite being frustrated at having to go in and out of the room on so many occasions. Mr McLaughlin accepted that the door has been known to slam shut on occasions.

Reasons for Decision

[38] The Informant was required to satisfy the Committee on the balance of probabilities that Mr McInerney jnr had misconducted himself in slamming the door to the Stewards Room when exiting it.

[39] It is purely a matter of fact for the Committee to determine on the evidence. Mr Wallis said that Mr McInerney had pulled the door behind him “quite forcefully”, while at the same time conceding, as did Mr McLaughlin, that the door was known to slam shut from time to time.

[40] Mr McInerney jnr was adamant that he had not slammed the door and we have no reason to doubt that assertion.

[41]It is a matter of the degree of force with which the door shut. We are not prepared to use the word “slammed” as there is, quite simply, no evidence that the door was slammed by Mr McInerney jnr or that it slammed of its own accord by the forces of gravity or nature.

[42] For those reasons, the charge of misconduct is dismissed.

Costs

[43] Mr McInerney is ordered to pay to the Judicial Control Authority the sum of $350 towards the hearing costs of that Body.

R G McKenzie       S C Ching

Chairman             Committee Member
 

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: