Non-Raceday Inquiry – BJ Dyke

hearingid: 4f62abb8fd4e683903e0545c937a7f89

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - BJ Dyke

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Decision:

There were two informations laid against Mr Dyke. They are in the alternative. They are now set out in precisely the way that they were in the notice which was served upon Mr Dyke.

DECISION OF JUDICIAL COMMITTEE

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1.            The Informations and the Course of the Hearing

1.1          Mr Dyke is a licensed horse trainer under the New Zealand Thoroughbred Rules of Racing. He is domiciled in Cambridge. He was represented at the hearing by his counsel Mr Tony Ryan and Ms Robyn Parker.

The informant was represented by Mr Mike Colson.

1.2          There were two informations laid against Mr Dyke. They are in the alternative. They are now set out in precisely the way that they were in the notice which was served upon Mr Dyke.

THAT on the 26^th day of January 2008 at the Clubhouse Sports Bar at the Cambridge Raceway, you did commit a Serious Racing Offence within the meaning of Rule 1001 (1) (p) of the New Zealand Rules of Racing IN THAT you did commit a dishonest act connected with racing or the off-course totalisator IN THAT you did verbally request to a totalisator betting terminal operator to place a bet being a percentage boxed trifecta bet having a total cost of $60 on race seven at the Wellington Racing Club meeting AND THAT the operator issued you with an incorrect boxed trifecta bet ticket on such race with a value of $16,320.00 but charged you only $60 AND THAT you became aware of this error prior to the race being run AND THAT you knowingly failed to alert the totalisator betting terminal operator, or any other agent or employee of the totalisator operator, to the situation and/or to have the incorrect bet cancelled prior to the payout of dividends on the said race which may have caused a financial loss to racing generally and did cause a financial loss to the totalisator operators of the Clubhouse Sports Bar totalling $16,260.00 AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1001 (2) of the New Zealand Rules of Racing.

and further

THAT on the 26^th day of January 2008 at the Clubhouse Sports Bar at the Cambridge Raceway, you did commit a Serious Racing Offence within the meaning of Rule 1001 (1) (v) (i) of the New Zealand Rules of Racing IN THAT you did or permitted or suffered to be done an act deemed detrimental to the interests of racing IN THAT you did verbally request to a totalisator betting terminal operator to place a bet being a percentage boxed trifecta bet having a total cost of $60 on race seven at the Wellington Racing Club meeting AND THAT the operator issued you with an incorrect boxed trifecta bet ticket on such race with a value of $16,320.00 but charged you only $60 AND THAT you became aware of this error prior to the race being run AND THAT you knowingly failed to alert the totalisator betting  terminal operator, or any other agent or employee of the totalisator operator, to the situation and/or to have the incorrect bet cancelled prior to the payout of dividends on the said race which may have caused a financial loss to racing generally and did cause a financial loss to the totalisator operators of the Clubhouse Sports Bar totalling $16,260.00 AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1001 (2) of the New Zealand Rules of Racing.

1.3          The relevant rules are:

1001 (1) (p)         commits any dishonest or fraudulent act connected with racing or the on-course or off-course Totalisator; or

1001 (v) (i)           does or permits or suffers to be done any act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of racing.

1.4          The informations were sworn by the Informant Mr Bryan McKenzie, a Racecourse Inspector on the 7^th May 2008. The events alleged to have occurred were said to have taken place on the 26^th January of this year and involve a bet placed by Mr Dyke on the Wellington Cup run at Trentham. The reason for the long delay between the alleged events and the laying of the informations will be explained, in part at least, later in the decision.

1.5          The hearing extended over two days. There was CCTV coverage operating in the Clubhouse Sports Bar on the 26^th January of this year and extended coverage of that was played at the hearing.

1.6          The Committee visited the bar and took “a view”. This was done in the company of counsel, the Informant Mr Bryan McKenzie and Mr Dyke. The operation of the terminal was explained and demonstrated.

2.            Standard of Proof

2.1          The Committee invited submissions on this issue. Both Messrs Colson & Ryan responded.

2.2          This Committee is a disciplinary body acting under the Rules of Racing and required to determine whether the allegations against Mr Dyke have been made out. A discrete issue may arise as to whether the events complained of, if proved, are sufficiently connected with racing to come within the ambit of the rule(s). In considering the standard of proof required the Committee is clear that in disciplinary proceedings before a domestic tribunal the standard of proof, in the absence of any statutory direction is the civil standard. It is the balance of probabilities. The leading authority is the Court of Appeal judgment in Z v The Complaints Assessment Committee 2008 1NZLR 65.

2.3          The Committee is mindful, as Mr Ryan rightly emphasised, that the more serious the allegation that is to be considered then the more compelling should be the evidence to prove the allegation. There was discussion between counsel and the Committee as to just how serious the allegations were in this case. Suffice to say that the Committee’s view is that the allegations are significantly serious. First because they allege actions which are said to be fraudulent or dishonest. Secondly because the penalties which could be imposed if the allegations are found to be proved can be serious, including suspension or disqualification.

3.            Summary of Facts Not Now in Dispute

3.1          On the afternoon of the 26^th January 2008 Mr Dyke and his partner Julia Alton went to the Clubhouse Sports Bar at the Cambridge Raceway. The Wellington Cup meeting was in progress at Trentham.

3.2          Mr Dyke placed a number of bets in the course of the afternoon. One of those bets was a trifecta on the Cup. A sum of $60.00 was paid over with instructions to the terminal operator that it was to be a percentage bet anchoring the horse Mirkola Lass to win with the field to run second and third. The ticket which was printed out by the operator was not a percentage bet and the total sum which was recorded and which in consequence was placed in the TAB pool was $16,320.00.

3.3          The TAB terminal operator was Nicola Alton. This young woman is the daughter of Mr Dyke’s partner Julia Alton. It has not been suggested by either counsel that this circumstance was anything more than a unique and unfortunate coincidence.

3.4          The bet was not successful. The TAB operator did not become aware of the position until around 5p.m. that day. The TAB records demonstrate that the bet was laid at 1½ minutes past 4 and that the payment of dividends took place at 23 minutes past 4.

4.            The Case for the Informant

4.1          It is said that the CCTV coverage shows Mr Dyke going to the terminal – there is only one TAB terminal in the bar – and having the operator scan a number of tickets two of which were winning tickets. Mr Dyke then placed bets on the Wellington Cup. First was the subject bet and then a second bet that being $20.00 each way on the same horse No 2 Mirkola Lass. The money required to purchase the tickets can be seen from the overhead CCTV camera. It was not possible to see on the film either the screen viewed by the operator or any printing on the tickets which were handed to Mr Dyke. The operator appeared to have had some difficulty in generating the trifecta ticket. There was more than one attempt to activate the correct code. Nicola Alton gave evidence for Mr Dyke but curiously she said nothing about the placement of the subject bet.

4.2          Evidence was called from Mr Richard Bright, one of the co-owners and operators of the bar. Mr Bright explained that the betting terminal was set up to show a large bet alert for all bets over $100.00. This alert operates by a notice appearing on the screen immediately in front of the operator when such a bet is laid. It is then necessary for the operator to decide whether or not the bet is to proceed and in either event a further key must be pressed for the transaction to proceed.

4.3          Mr Neil Rutherford was in the bar on the afternoon of 26^th January of this year. He told the Committee that he knew Bernard Dyke and that they had on occasions been in casual conversation. He said he was not a friend of Mr Dyke. Mr Rutherford related that he was standing near the sole betting terminal on the bar. Mr Rutherford’s hand can be seen in the CCTV coverage. He said he heard the bet being placed. The two words which in particular took his attention were $60 and the word percentage. Mr Rutherford said that soon after this he was standing by the bar close to the TAB terminal and that he and Mr Dyke began a conversation. He said he asked Mr Dyke to explain what sort of percentage he would receive for the $60 which had been outlaid. Mr Rutherford told the Committee that Mr Dyke then took tickets from his shirt pocket and put those on the bar where both could see them. Mr Rutherford told the Committee that he saw the trifecta ticket. He said that it was plainly not a percentage trifecta but a trifecta bet which totalled over $16,000.00.  He asserted that it was obvious. He maintained that it must also have been obvious to Mr Dyke and that he immediately said to him “shit Bernie you had better tell them”. Mr Rutherford told the Committee that Mr Dyke’s reply was “fuck them”. Mr Rutherford’s account was that this conversation took place some two minutes before the Wellington Cup was run. He said that after the race he said to Mr Dyke “go and see them now as the ticket is not a winner and they will never balance the books”. In response to this Mr Dyke said “stuff them”. Mr Rutherford said that he saw Mr Dyke disposing of some losing tickets in a rubbish bin.

4.4          It is submitted that the CCTV film supports Mr Rutherford’s account. The film shows conversation between the two men. Of particular significance is the close examination that both make of the papers taken from Mr Dyke’s shirt pocket. During the course of that conversation there are two occasions when the two men come close together and then stand back. One of these occasions occurs immediately after the close examination of the material that came from the pocket. The movement by both men is quite sudden and marked. This occasion is much more noticeable than the other. It is said for the Informant that this is the occasion when both men realise that the ticket is for $16,000.00 or thereabouts and the conversation related by Mr Rutherford then took place. It is said that the startled movement was consistent with the sudden realisation that something was very much out of the ordinary.

4.5          Mr Bright was not present on the day in question and thus can give no direct evidence. In his brief Mr Bright recounted (para.17) a conversation that he said took place with a man named Gary Brett. That person is said to have related to Mr Bright what was said to him by Mr Rutherford about the events of the afternoon. Clearly the evidence from Mr Bright of what Mr Brett told him concerning what he in turn had been told by Mr Rutherford is hearsay. Mr Bright went on to say however that Mr Rutherford had made a statement to him which was different. Something was made of this by Mr Ryan in his closing submissions and the Committee will return to this subject later in the decision.

4.6          Mr Paul Alpe gave evidence for the Informant. He is the manager of investigation and security for the New Zealand Racing Board and has been employed by the Board and its predecessor the TAB for more than 30 years. Mr Alpe’s evidence was helpful in understanding the operation of the totalisator. It is worth commenting that there is a large bet alert which was activated on 26^th January. The notification of this in TAB Headquarters in Wellington is by a printout from an orthodox typing or email printer. There was no visual or audio alert. It follows that if no person looked at the printout at the relevant time the warning would go unheeded. Mr Alpe gave evidence about a number of changes which have been made in the notification and prohibition of large bets. The TAB limit for a single bet is now to be $9,999.00. Coincidentally that rule came into effect on the first day of the hearing, the 30^th June.

4.7          Mr Kerry Wells gave evidence for the Informant. He is the general manager of the Cambridge Raceway. This evidence was to the general effect that that persons involved in racing were concerned by the allegations made against Mr Dyke. This evidence was anecdotal in character and of little assistance. It is for the Committee to determine whether the actions alleged constitute offences under the two nominated provisions of Rule 1001 (1). It is sufficient to observe at this time that the first information charging an offence under Rule 1001 (1) (p) speaks of a dishonest or fraudulent act connected with racing and then goes on to speak of the operation of the totalisator. The dishonest or fraudulent act need not be with reference to the totalisator. The word racing is immediately followed by the word or ... the on course or off-course totalisator. It is enough that there be a dishonest or fraudulent act connected with racing. Whether any particular activity is sufficiently connected with racing is for the Committee to determine. The authority is Carter v The Judicial Control Authority et el see Hamilton CIV 2006-419-841 7 December 2006 Harrision J.

4.8          The Informant was granted leave to file a brief in rebuttal by Mr John McKenzie the Chief Racecourse Inspector. This request arose from a passage in Mr Dyke’s evidence in which he recounted a discussion with Mr John McKenzie while the matters before the Committee were under investigation. There was some measure of agreement between Messrs Dyke and John McKenzie as to what was said. In one particular area however there was sharp disagreement. This had to do with the allegation by Mr Dyke that Mr McKenzie had allegedly said that for the payment of a specified sum he could make it go away. Mr McKenzie firmly denied having said that. He was vigorously cross-examined. He remained clear in his account of the discussion. Some suggestion arose that other persons who had been parties to the conversation might be called to give evidence. In the event they were not. Precisely what was said between Messrs Dyke and John McKenzie on the occasion of that telephone discussion is not material to the determination the Committee must make. The conversation was long after the events of the 26^th January.

5.            The Position of Mr Dyke

5.1          Mr Dyke did not dispute that he was given the $16,320.00 trifecta ticket. The ticket was still in his possession the following day. The original was produced at the hearing. It is now rather battered and difficult to decipher. Mr Dyke said that he knew nothing of the contents of the ticket. He said he did not look at it.

5.2          Mr Dyke denied any conversations with Mr Rutherford about the ticket either before or after the race. He alleged in his written brief that Mr Rutherford was seriously effected by alcohol. He said that Mr Rutherford has concocted a story (the exact words in the brief) to fit the CCTV footage. He said that discussions with Mr Rutherford had to do only with the latter’s employment by NZ Bloodstock and had nothing whatsoever to do with the tickets purchased at the TAB terminal.

5.3          In answer to questions posed in cross examination Mr Dyke said that amongst the items in his shirt pocket were pieces of paper which recorded tips or picks which he had heard given out on the Trackside television channel on the Saturday morning. Further reference will be made to this evidence later.

5.4          When directly asked by the Committee what motive Mr Rutherford might have to give false testimony Mr Dyke asserted that Mr Rutherford was a friend of the owners and operators of the bar Mr Bright, to whom reference has already been made, and his business associate Mr Dickie. Further Mr Dyke said that Mr Rutherford might have been motivated by some financial gain or benefit. These answers will be discussed later in the decision.

5.5          Julia Alton is Mr Dyke’s partner and she was in the bar of the afternoon of the 26^th January. She said that in her opinion Mr Rutherford was effected by alcohol. She took no part in the conversations between Mr Dyke and Mr Rutherford and does not appear in any relevant part of the CCTV footage.  Ms Alton gave an account of events on the following day when her daughter Nicola rang to tell her that the subject ticket had been sold to Mr Dyke. After that conversation the ticket was located in Mr Dyke’s clothing.

5.6          Nicola Alton gave evidence and told the Committee that Mr Rutherford had said nothing to her at the bar concerning the subject ticket.

5.7          Nicola Alton is no longer employed at the bar. The terms upon which she settled employment issues with the bar owners are confidential. They are, in any event, not relevant to this proceeding. Much of Nicola Alton’s evidence was concerned with the alleged drinking habits of Mr Rutherford and the claimed betting practices of her former employers. The latter subject is not relevant. In answer to a question from Mr Dyke’s counsel Nicola Alton said that while at the position where the drinks dispenser was situated in the bar she would not have been in the position to hear conversation between Messrs Rutherford and Dyke in the position which they occupied further along the bar in the direction of the TAB terminal.

5.8          By agreement the Committee was shown a printout of the breaches of the Rules of Racing committed by Mr Dyke. These are few in number and none are of any significance.

5.9          Briefs of evidence were tendered by a number of character witnesses. Evidence of good character serves two purposes. First to inform the Tribunal which must determine the facts that it improbable that a person of good character would have conducted themselves as is alleged. Secondly a person’s good character has relevance to that person’s credibility. Mr Colson did not seek to cross-examine any of the witnesses who spoke of Mr Dyke’s good character.

6.            Assessment of the Evidence

6.1          A complaint was made by Messrs Bright and Dickie to the Racecourse Inspector and the Informant in this proceeding Mr Bryan McKenzie. It is unclear from the evidence whether Mr McKenzie has ever spoken directly to Mr Dyke on this matter.

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hearing_type: Old Hearing

Rules: 1001.1.p, 1001.2, 1001.1.v.i, 1001.1, 226.2.b

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