Appeal – TR Vince

hearingid: 16e0c8e0185b78862f94884be4b11280

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Appeal - TR Vince

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On 22 August 2005 in a decision relating to Mark Purdon, the Judicial Committee disqualified Light and Sound from Race 6 at the New Zealand Metropolitan Trotting Club meeting of 26 March 2004 and also Race 9 at the Auckland Trotting Club meeting of 16 April 2004.

 DECISION OF APPEALS TRIBUNAL

On 22 August 2005 in a decision relating to Mark Purdon, the Judicial Committee disqualified Light and Sound from Race 6 at the New Zealand Metropolitan Trotting Club meeting of 26 March 2004 and also Race 9 at the Auckland Trotting Club meeting of 16 April 2004. Mr Purdon had admitted a breach of Rule 1001(1)(v)(i) in that between 26 March and 16 April 2004 he acted in a manner detrimental to the interests of harness racing in the circumstances in which he administered a substance to the horse Light and Sound which was taken to a race course for the purpose of engaging in a race.

The Appellant is a part owner of Light and Sound and appeals against the disqualifications.

The appeal was, by consent, dealt with on the papers. The appellant indicated that he would not be appearing nor calling any witnesses nor was he to be represented by counsel. His original grounds of appeal are stated as follows:

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1. The owners are innocent victims so it goes against natural justice.
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2. The decision to use discretion was wrong considering the following:

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1. It was not a case involving a prohibited substance
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2. There is no evidence that the substance administered to Light and Sound affected the horse's performance.
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3. There was no positive swab.

In a further written submission, the appellant contended that the disqualification was unreasonable given the fact that approximately 18 months had elapsed between the running of the races and payout of the stake money, and the order for disqualification of the horse from those races. He submitted that the owners had a "reasonable right" to retain the stake money in those circumstances.

The disqualification of the horse was imposed by the Judicial Committee pursuant to Rule 1001(3) wherein the Committee may disqualify a horse from any race and/or for any other period as stated in the rule.

This Tribunal issued a Minute on 27 September 2005 as to outstanding procedural matters. These have now been resolved. We are satisfied that although Rules 1201(2)(a) and 1201(2)(d) appear to preclude an appeal by the Appellant, he has a right of appeal pursuant to Clause 21(3) Third Schedule of the Racing Act 2003.

The nature of such appeal is not defined but we are satisfied it is governed by Part XII New Zealand Rules of Harness Racing. Rule 1205(2) is as follows:

(2) All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.

It is not appropriate in our view to deal with this appeal strictly as a rehearing. The Judicial Committee decision to disqualify the horse was pursuant to the exercise of a discretion but only came about after the findings made in respect of Mark Purdon. We do not propose to rehear that case. What we propose to do is to consider, on usual principles, the propriety of the Judicial Committee's exercise of its discretion to disqualify. If we conclude that the Judicial Committee took into account irrelevant factors, overlooked relevant factors, was just plainly wrong or had proceeded on an unprincipled basis then our course would be to set aside its decision and deal with the matter under Rule 1207(1)(b) and (c). Furthermore, as the disqualification order is tantamount to a penalty imposed we also propose to consider whether it was manifestly excessive, or inadequate or inappropriate (Rule 1207 (2)(b)). We accept that there is some overlapping in these approaches.

We have read the Judicial Committee's decision of 22 August 2005 and have also read the submissions as to the disqualification of the horse which were considered by the Judicial Committee. We have considered the written submissions of both parties filed in this case.

We are satisfied that there has been no breach of natural justice. As Mr Lange points out in his submissions, the owners were given an opportunity at the Judicial Committee hearing to make submissions through counsel. Mr Davidson QC filed written submissions specifically addressing the disqualification of the horse. We also note that the Judicial Committee received submissions from a Mr Palmer representing the owners of Light and Sound. The Judicial Committee was aware that there was no positive test for a prohibited substance taken from the horse and, of course, there was no evidence to show that whatever had been administered to the horse affected its performance.

There is no substance in the argument that the Appellant was an innocent victim as a result of the effects of the disqualification. Whenever and however a horse is disqualified from a race there will be an effect (often monetary) on those associated with it. Disqualification whether mandatory or discretionary is a necessary part of the Rules of Harness Racing. We agree with Mr Lange's submissions on this issue.

As to the exercise of the discretion, we have considered the Judicial Committee's decision and it is clear that it took into account all relevant factors and made no error in this regard. It was fully aware of all relevant considerations including Rule 1114(2) and came to a principled decision.

We do not find that the disqualification of the horse was a manifestly excessive or inappropriate penalty. The Judicial Committee disqualified the horse only from the races concerned and not for a period of time as it might have done. We agree with the Judicial Committee's decision and in particular with the following statement:

"?but in ordering disqualification we emphasise the need to maintain integrity and public confidence in Harness Racing. To let the placings stand in these circumstances could be seen to be contrary to this important consideration in that the integrity of racing might otherwise be seen to be compromised."

We do not propose to go over the facts of the Purdon case but simply comment that where an experienced trainer injects an unknown substance intending to assist the horse prior to races on two occasions, it was in our view inevitable that the horse would be disqualified from those races. We do not find that the delays alleged by the Appellant affect the position. We find that the disqualification of the horse from the two races was justified and appropriate. The appeal is dismissed.

We do not propose to make any order as to costs.

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hearing_type: Old Hearing

Rules: 1001.1.v.i, 1001.3, 1205.2, 1207.1.b, 1207.2.b, 1114.2

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