Banks Peninsula TC 17 March 2019 – R 6 (heard 27 May 2019 at Addington) – Chair – Mr R G McKenzie

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hearing_title: Banks Peninsula TC 17 March 2019 - R 6 (heard 27 May 2019 at Addington) - Chair - Mr R G McKenzie

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BEFORE A JUDICIAL COMMITTEE

AT CHRISTCHURCH

-IN THE MATTER of the New Zealand - Rules of Harness - - Racing

IN THE MATTER of Information No. A7746

BETWEEN S P RENAULT, Stipendiary Steward for the Racing Integrity Unit

Informant

AND-MURRAY JOHN HOWARD of Norwood, Licence to Train / Open Driver

Respondent

Judicial Committee:-Mr R G McKenzie (Chairman)

Mr S C Ching

Date of Hearing:-27 May 2019

Venue:-Stewards’ Room, Addington Raceway, Christchurch

Present:-Mr S P Renault, the Informant

Mr M J Howard, the Respondent

Mr N M Ydgren, Registrar

Date of Oral Decision:-27 May 2019

Date of Written Decision: 31 May 2019

DECISION OF JUDICIAL COMMITTEE

Background

[1]-At the meeting of Banks Peninsula Trotting Club at Motukarara on Sunday, 17 March 2019, Information No. A7746 was filed by the Informant, Mr Renault, against the Respondent, Mr M J Howard, Holder of a Licence to Train and Open Driver, alleging that Mr Howard had committed a breach of Rule 303 (2) in that he “misconducted himself in the Stewards’ Room following Race 6”.

[2]-The information was filed with the Judicial Committee on the raceday and was adjourned sine die.

[3]-The information was subsequently served on Mr Howard (on 26 April 2019). He indicated and signed in the Statement by the Respondent on the information form that he did not admit the breach.

[4]-The hearing of the charge took place on 27 May 2019. Mr Howard was present at the hearing. The rule and charge were read to him and he confirmed that he understood them and that he denied the breach.

The Rule

[5]-Rule 303 provides as follows:

(2)-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, Racing Inspector or Starter.

Case for the Informant

[6]-Mr Renault presented the following submissions:

(1)-On Sunday 17 March 2019 the Respondent, Mr Murray Howard, was the driver of the horse, ONE FOR THE KITTY, in Race 6 at the Banks Peninsula TC meeting held at Motukarara.

(2)-FOR THE KITTY is trained by Mr Howard and in this race finished in 1st placing.

(3)-Following the race Mr Howard was called into the Stewards’ Room in relation to a charge of using his whip on more occasions than permitted by Clause (b) of the Use of the Whip Regulations.

(4)-Mr Howard was advised that his whip use in the race was around 20 times inside the final 400 metres. Mr Howard elected not to view a replay of the race and instead made comment about a race in Auckland a few days prior. Mr Howard’s comments were that Stewards had a vendetta against him and that we can’t charge him because the driver in Auckland had not been charged for an alleged breach of the whip rule.

(5)-Mr Howard then left the Stewards Room a short time later, approximately two minutes.

(6)-Mr Howard returned to the entrance of the Stewards’ Room several minutes later and said “Oh, and by the way, I think you’re the biggest crooks in the game”.

(7)-At this point in the hearing, Mr Renault sought leave to play to the hearing the Stewards’ audio recording of the two parts of the raceday interview with Mr Howard. The recordings were duly played.

(8)-Mr Howard was asked to confirm that the audio recordings were accurate records of what had taken place. He queried that the portion of the first part of the interview, when he enquired of Mr McIntyre whether he was being charged to which Mr McIntyre replied “yes”, was not on the recording.

(7)-Immediately Mr Peter Lamb who was in the Stewards’ Room with Mr Nigel McIntyre (Manager of Stewards), Mrs Michelle Cameron (RIU typist) and Mr Renault advised Mr Howard to leave the room.

(8)-After Mr Howard said “no, no, no, no” Mr Lamb then went on to say “If you don’t leave, I’m going to have to remove you”.

(9)-Mr Howard continued with Mr Lamb at the door of the Stewards’ Room before directing his words to Mr McIntyre who walked over with the voice recorder to the vicinity of where Mr Howard was standing. That is where Mr Howard said to Mr McIntyre “Oh, bring it right out Nige so everybody can hear it” and “you were the biggest loser as a trainer”.

(12)-Mr Howard was very aggressive.

(13)-This altercation was able to be heard by any licenceholder who was in the trainers’ and drivers’ café area outside the Stewards Room and any person who was around the Secretary’s office, which is located in the next room over from where Mr Howard was standing. Mr Howard was standing just outside the door to the Stewards’ Room and Mr Lamb was standing just inside.

(14)-The definition of “misconduct” in the Oxford Dictionary is “unacceptable or improper behaviour, especially by an employee or professional person”.

(15)-The integrity of racing is paramount and all participants in the racing industry need to be aware of this.

(16)-Mr Howard’s verbal abuse is unacceptable and improper behaviour. The Stewards' responsibility to oversee the Rules of Harness Racing and to be accused of being “crooks” is seriously insulting.

(17)-Mr Howard’s actions were completely unprofessional in returning to the Stewards’ Room and directing offensive language towards Stewards is completely unacceptable and we believe this clearly falls into the “misconduct” category.

Evidence of Mr Peter Lamb

[7]-Mr Lamb said that he was employed by the Racing Integrity Unit, primarily, as a Race Starter but also as a Racing Investigator and a Stipendiary Steward.

[8]-On 17 March 2019, he was at the race meeting at Motukarara, primarily in his capacity as a starter.

[9]-Mr Lamb said that he entered the Stewards’ Room later in the day. Mr Howard was seated in that room with the Stewards. He was present from the start of the interview with Mr Howard.

[10]-At first, Mr Howard’s demeanour was fine, but he changed, when the Stewards began to question him, to being “argumentative and disrespectful”.

[11]-Mr Howard then left the room abruptly. When he returned, Mr Lamb was standing at the other end of the room (the birdcage end). Mr Howard returned unannounced and was “still upset, angry and argumentative and disrespectful in the way he spoke to the Stewards”.

[12]-Mr Renault then read to Mr Howard from the transcript of the interview the following extract:

MH-Do you know what happened on Friday?

PL-I’m really not interested, Murray

MH-Do you know what happened on Friday night?

PL-I’m really not interested

MH-Friday, Friday afternoon

PL-Bigger things happening in the world

[13]-Mr Lamb said he believed that those comments were, quite clearly, an attempt by Mr Howard to intimidate him and others in the room by reference to the mosque shootings that had occurred in Christchurch just two days earlier. Mr Lamb described that reference as “horrific”.

[14]-Mr Lamb said that, at no stage, was Mr Howard’s conduct acceptable for a licenceholder. From the beginning of the initial interview, Mr Howard’s conduct deteriorated immediately and, from that point, it was unacceptable to speak to Stewards in that manner or to conduct himself in that manner.

[15]-Mr Howard, given the opportunity to cross-examine Mr Lamb, referred to part of the interview:

PL-If you don’t leave, I’m going to have to remove you.

MH-Are you and how you going to do that?

PL-I’ll pick you up

[16]-Mr Howard stated that, from the manner in which Mr Lamb had approached him, he felt threatened.

[17]-The Committee questioned Mr Howard concerning the part of the interview set out in para [9] above. He replied that his reference was to the race at Auckland (on 15 March) in which another driver had not been charged by Stewards over his whip use. He denied that the reference was to the mosque shootings. He had mistakenly said “Friday afternoon”, he said.

[18]-Mr Lamb said that he had felt “very uneasy” regarding Mr Howard’s reference to “Friday afternoon” as did, he believed, every other person in the room. He did not believe that it was a reference to the Auckland race.

The Respondent’s Submissions

[19]-Mr Howard said that he agreed that his behaviour “was not the best on the day”. It was prompted when Mr McIntyre said that he was going to be charged, he said. It was meant to be an inquiry but there was no inquiry, he said. He felt that Mr McIntyre should have invited him to sit down and show him the film and discuss it. He maintained this is what had happened, but accepted that it was not on the audio recording.

[20]-He alleged there were “inconsistencies of most Stewards and unfair behaviour of some of them most of the time”.

[21]-Mr Renault, who was Chair of Stewards on the raceday, explained that it would not have been normal for Mr McIntyre to have said anything unless asked by him, as Chair, whether he had any questions.

[22]-Mr Howard was asked by the Committee to summarise his defence to the charge. Mr Howard replied that he did not wish to say anything further.

Closing Submissions of the Informant

[23]-Mr Renault said that, for Mr Howard to use the word “crooks” to the Stewards whose job it was to police the industry, was unacceptable. His conduct in the room was in front of the female stenographer and she was intimidated, Mr Renault said.

[24]-Mr Howard then attempted to justify his referring to the Stewards as “crooks”. He alleged that, for example, as a means of gaining revenue, Stewards would knowingly allow a horse onto the track with a wrong saddlecloth number before calling the driver back and a charge would follow. Mr Renault responded by saying that if a horse was detected wearing a wrong number it would be turned around before it got onto the track.

Reasons for Decision

[25]-Mr Howard’s conduct and abusive words in the Stewards’ Room on this occasion clearly amount to “misconducting himself” in terms of Rule 303 (2) under which he has been charged. The Committee had the benefit of listening to the entire recording of the initial attempt at an interview and also “take two”, when Mr Howard returned and stood at the door of the Stewards’ Room and continued with his aggressive behaviour and verbal insults. His behaviour was not what would be expected of a licensed trainer and horseman.

[26]-Stipendiary Stewards have an important job to do on raceday. Their “functions and duties” are set out in Part II of the Rules (rules 201 to 217) and those functions and duties are many and varied but, essentially, it is their function to ensure smooth running of the race meeting and observance of the Rules. In particular, rule 211 (1) gives Stipendiary Stewards power to “regulate and control the conduct of Officials . . . and of all trainers, horseman and persons attending on horses”. Further, they are given, in rule 210, the power to investigate inter alia “any matter which may result in the laying of an information” and “any matter in connection with the driving of any horse”.

[27]-The exercise by the Stewards, on this occasion, of their functions and duties was, the Committee is satisfied, quite properly carried out. Mr Howard was interviewed following his drive on FOR THE KITTY in Race 6, Stewards being concerned over his use of the whip in the final 400 metres of the race. We note that, at the outset of the interview, Mr Howard was informed why he had been summoned to the Stewards’ Room and the following conversation ensued:

MH-Now, so what are you going to charge me for that?

SR-So, I will show you the film first

MH-And I don’t need to see the film, I don’t need to see the film

SR-OK

MH-So you’re going to charge me for that?

SR-So there is a charge.

MH-Hold on a minute, I reckon you have a bit of a vendetta against me.

[28]- Mr Howard’s conduct deteriorated from that point, while the Committee is satisfied that nothing was said or done by the Stewards to provoke Mr Howard and neither was there anything to suggest that he was treated in an inappropriate fashion.

[29]-The Committee is particularly concerned at Mr Howard’s possible reference to the Christchurch mosque shootings, that had taken place just two day earlier. Mr Howard tried to explain the reference but, quite frankly, his explanation was unconvincing. We have to give Mr Howard the benefit of the doubt in this regard, but would comment that, if that was his intention, then it could only have been intended as a veiled threat and, in any event, in very poor taste, which does him no credit whatsoever. We note that Mr Lamb was most concerned and took it as being in the nature of a threat.

[30]-Mr Howard denied the charge that he had misconducted himself but, when given the opportunity to present his defence to the charge, the only matter which he raised was that Mr McIntyre had told him, before any inquiry had commenced, that he was to be charged. Not only is there nothing in the audio recording played to the hearing to substantiate that, but also it would not have, in any event, amounted to a defence to the charge of misconduct. Effectively, Mr Howard offered no defence and, when asked to sum up his defence, he had nothing to say.

Decision

[31]-The charge was found proved

Penalty Submissions of the Informant

[32]-Mr Renault said that Mr Howard has been licensed since 1984. There was a period from 2009 when he was not licensed. He has not been charged with a breach of the rule previously.

[33]-Mr Renault then referred to the usual principles of sentencing.

[34]-Mr Renault cited two previous similar cases that, he submitted, might be of assistance to the Committee – RIU v S Dickson (harness racing case from February 2017) and RIU v A Waretini (greyhound racing case from November 2018). Mr Dickson was fined $850 and Ms Waretini was fined the sum of $750.

[35]-The Judicial Committee was invited by the RIU in each of those cases to adopt a starting point of a $1,000 fine, and that was expressly adopted in the Waretini case. Stewards feel that an appropriate penalty in this case is in the range of those penalties, $750-$850. Any penalty needs to be meaningful and send a clear message that this type of conduct will not be tolerated.

Penalty Submissions of the Respondent

[36]-Mr Howard said that such a penalty would be fair but he was on a minimal wage and would, therefore, prefer a suspension. The Committee indicated that it did not see a suspension as being appropriate. He worked full-time, 6 to 6½ days a week, for a trainer on a contract basis, Mr Howard said. His pay would work out at less than the minimum wage, he submitted.

Reasons for Penalty

[37]-In determining penalty, the Committee has taken a starting point of a $1,000 fine. In this regard, we have taken guidance from the Dickson and Waretini cases referred to us by Mr Renault, the circumstances of which are similar to the present case.

[38]-We do not find any aggravating factors requiring an uplift to that starting point. Having said that, the Committee notes its concern that Mr Howard appeared to make reference to the Christchurch mosque shootings, which had taken place only two days before, which reference could have been perceived as a threat and, indeed, Mr Lamb told us that he took it at the time to be by way of a threat. When questioned about this, Mr Howard denied that the reference was to that event, but we found his explanation for it to be unconvincing. In the end, we have given Mr Howard the benefit of the doubt in this regard and we have not taken it into account as an aggravating factor. 

[39]-The Committee also notes that, at no stage, did Mr Howard show any remorse for his conduct and, other than to concede that his behaviour “was not the best on the day”, he maintained his defence, such as it was, to the charge throughout. Even at the conclusion of his defence, he saw fit to cite an instance in support of his belief that the Stipendiary Stewards were “crooks” (para [24] above). His lack of remorse, of course, is not an aggravating factor but it, nevertheless, does him no credit in circumstances in which an apology may have been to his credit.

[40]-The sole mitigating factor that we can find is Mr Howard’s excellent record. We were told that he has held a licence since 1984 – 35 years in the industry with no previous breach of the misconduct rule. It is a pity that this excellent record has now been tarnished. On the basis of that record, it would appear that Mr Howard’s conduct on this occasion was totally out of character. Sadly, however, the Committee was given no credible explanation for that conduct.

[41]-During the course of the interview in the Stewards' Room in relation to his drive on FOR THE KITTY in Race 6, Mr Howard maintained an abusive and unjustified verbal attack on the Stipendiary Stewards in their collective capacity, and against Mr McIntyre and Mr Lamb personally. The Stewards should not be subjected to such abuse in the course of performing their duties and functions under the Rules. To accuse them of being “crooks” is a most serious allegation.

[42]-From the starting point of a $1,000 fine, with no aggravating factors, we are able to give Mr Howard a discount for his record and this discount we fix at $150. We have also taken into account Mr Howard’s financial situation in arriving at the penalty of fine of $850.

[43]-In fixing penalty, we have had regard to the need to:

(1)-hold Mr Howard accountable;

(2)-to promote in him a sense of responsibility;

(3)-to denounce Mr Howard’s conduct; and

(4) to deter him or other persons from committing the same or a similar offence.

Penalty

[44]-Mr Howard is fined the sum of $850.

Costs

[45]-As the breach occurred on a raceday, there will be no order for costs.

R G McKENZIE        S C CHING

Chair                      Panellist 

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