Non-Raceday Inquiry – PDJ Harris

hearingid: 8122a2d4a3c5ff99db8534ee347804de

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Non-Raceday Inquiry - PDJ Harris

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Information No.0990 alleges that the Defendant, Mr Harris, committed a breach of Rule 411(2) of the New Zealand Rules of Racing

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Information No.0990 alleges that the Defendant, Mr Harris, committed a breach of Rule 411(2) of the New Zealand Rules of Racing as follows:

Rule 411 (2) provides as follows:

Mr Harris was present at the hearing and, after the charge and Rule were read to him, he indicated that he admitted the breach. Accordingly, the charge was found to be proved and the hearing proceeded in relation to penalty.

Mr McKenzie confirmed that the written permission from the Chief Executive of New Zealand Thoroughbred Racing to file the information had been obtained pursuant to Rule 1103 (4) (d).

Mr McKenzie presented a summary of facts. The facts are simple and were not disputed by Mr Harris. The facts may be summarised as follows:

Mr Harris was the trainer of a 2-year-old brown filly accepted for Race 4, Ford Welcome Stakes, at the meeting of Canterbury Jockey Club held at Riccarton Park Racecourse on Saturday, 12 November 2005. The race was a Listed Race for 2-year-olds over a distance of 1,000 metres for a stake of $33,000. That filly was shown in the race book as having the registered name of MISS ROSEMARY being by Pentire ex Miss Thyme and owned by Mr A J Ryan. Mr Harris was shown as the trainer. The filly was having her first start at a totalisator meeting, having been to the trials on one occasion under the name, MISS ROSEMARY.

Mr Ryan had agreed to lease a 50% share in MISS ROSEMARY to a syndicate managed by a Mr John Bowden. The lease papers were completed and registered with New Zealand Thoroughbred Racing in the last few days before the race.

On 12 November 2005, the filly was taken to the racecourse and, prior to the race, was inspected by the Stipendiary Stewards, in the presence of Mr Harris, when it was discovered that the filly did not match the identification details for MISS ROSEMARY on the documents held by the Stewards. It was established that the horse being inspected was, in fact, a 2-year-old bay filly by Bertolini ex Long Summer. The filly was a late scratching and all TAB investments on her were refunded. It transpired that MISS ROSEMARY was not ready to race and was, at the time, being spelled on Mr Harris' property.

Mr Scott read a statement by Mr Harris dated 24 November 2005. In that statement, Mr Harris explained that he had secured the two fillies out of the Select Sale at Karaka in February of 2005. Both were by Rich Hill Stud stallions. The Pentire filly was sent to him by Mr Tony Ryan and the Bertolini filly by Mr Gary Hendricks. The two fillies arrived at his stable in the same float and both were "tagged? with tags on their head collars. Both were sent to his brother's farm for breaking in. It was assumed by Mr Harris and his staff that the filly with the RH (Rich Hill) brand was the Pentire filly. Mr Harris acknowledged that it is the trainer's responsibility to ensure that the correct horse is presented at the races but, he said, he was "lulled into a situation" where he had "no reason to believe that the horse in training was other than the Pentire filly". He stated that the two brands were similar. Mr Harris acknowledged that he had no "specific system" in place for checking the brands of horses. He claimed that it was an innocent mistake on his part and that there had been no attempt "to deceive anyone in relation to the horse which was taken to the races on 12^th November".

Mr McKenzie submitted that it was a fundamental requirement that every horse that starts in a race is, in fact, the correct horse. He explained the procedure for recording markings and brands which is the "foundation information" of every thoroughbred registered with New Zealand Thoroughbred Racing. Importantly, Mr McKenzie explained that, in November 2005 and for months before that, the official records have been available through the website of New Zealand Thoroughbred Racing, enabling any person to obtain the brand details of any horse to confirm identification. Mr Harris had acknowledged that he did not check the identity of either filly when they arrived at his property.

Mr McKenzie referred to the fact that Mr Harris had breached Rule 411 (2) on a previous occasion. He submitted that it was not acceptable for a trainer to rely on any other person as to the identity of horses that arrive at his training establishment. Notices have frequently been given to trainers to this effect, Mr McKenzie said. Mr McKenzie referred to the old system of identifying a horse prior to that horse's having its first start at a race meeting. A facility is now available to trainers to protect trainers from wrongly identifying a horse through incorrect name tags and there can be no excuse for not correctly identifying a horse.

Mr McKenzie was critical of the Judicial Committee decision in the recent case of Lynds, a case involving a breach of the same Rule. In that case, the Judicial Committee acknowledged that the trainer had "experienced difficulties ? in obtaining information regarding brands". He submitted that the Judicial Committee had been misled by the trainer into a belief that it was now more difficult to access information to enable a horse to be identified.

Mr McKenzie referred to the discretion given to the Committee to adjudge or declare the breach to be a serious racing offence. He submitted that the discretion could be exercised in the case of a person who does not "take responsibility" to ensure a horse is correctly identified before entering it for and starting it in a race. It was not a discretion to be exercised only where an intent to start the wrong horse is proved.

Mr McKenzie submitted that the Committee should give "serious consideration" to considering the present breach to be a serious racing offence and he referred to the respective penalty provisions of Rules 1001 (2) and 1003. He sought a "substantial penalty" and submitted that disqualification or suspension should be considered although he was not seeking that in this case.

Mr Harris' contribution to racing was acknowledged by Mr McKenzie together with the fact that he trains for a substantial number of owners. However, Mr McKenzie submitted, this does not give Mr Harris licence to ignore the Rules but, rather, he should be a role model for new and junior trainers.

Finally, Mr McKenzie referred to the well-established sentencing principles which, he submitted, should be taken into account by the Committee.

Mr Harris presented to the Committee written submissions that had been produced by his Counsel, Mr A J Ryan, who was the owner of MISS ROSEMARY. In those submissions, Mr Ryan canvassed the facts from Mr Harris' point of view. These did not differ in any material way from the facts as presented by Mr McKenzie.

Mr Ryan submitted that there was no way for Mr Harris to check the brands of the two horses other than for him to have obtained a copy of the foaling slip from New Zealand Thoroughbred Racing. Mr Harris relied on the tags as being correct when the horses arrived. The practice of presenting the registration papers with the horse on its first raceday has now changed and Mr Harris had not seen the papers for MISS ROSEMARY.

Mr Ryan produced a letter from Michael Brown BVSc. in which Mr Brown stated that Mr Hendricks, the owner of the Bertolini filly, had on more than one occasion visited Mr Harris' stables and had himself been fooled as to which horse was his and believed that MISS ROSEMARY was, in fact, the filly owned by him. This was confirmed by Mr Harris who also said that the two fillies bore a very strong physical resemblance to one another.

Mr Ryan submitted that an appropriate penalty was a penalty "at the bottom end of the scale". In support of that submission, he referred to four earlier decisions - Wheeler (1997), Anderton (1998), Wallace (2000) and Barber (2003). He submitted that, in each of those cases, the registration papers were available to the trainer and/or owner thereby differentiating those cases from Mr Harris'.

Mr Ryan submitted that the maximum fine that should be imposed on Mr Harris was $500 based on the following:

1. That no member of the public had suffered;

2. No registration papers were available to Mr Harris as a check as to the identity of the horse;

3. Mr Harris' early guilty plea and cooperation with New Zealand Thoroughbred Racing; and

4. That Mr Harris' situation is the "least culpable" when looked at in the light of the four cases referred to above.

In determining penalty, the Committee had regard to the submissions of both parties.

There are, in the Committee's view, a number of significant aggravating factors:

1. That a charge against Mr Harris was found proved at the end of 2004 for a breach of Rule 411 (2) committed in August 2004. The facts of the 2004 case are alarmingly similar to the facts of the present case ? that is to say, the two horses whose identities were confused arrived at Mr Harris' property wearing name tags and no steps were taken to establish the correct identities of those horses. Mr Harris was, on that occasion, fined the sum of $600.

2. Notwithstanding being fined for that breach, Mr Harris took no steps, on the subsequent occasion, to establish the correct identity of MISS ROSEMARY and the Bertolini filly when they arrived at his stables together wearing name tags.

3. A simple method of establishing identity was available to Mr Harris who knew, or ought to have known, as a professional trainer, that it was available. We were informed by Mr McKenzie that the New Zealand Thoroughbred racing website was operating in November 2005 and prior to that and enabled any person to go online and carry out a simple horse enquiry to ascertain brand details. Further, Mr Harris acknowledged, when asked by the Committee, that he did have a computer with internet access at the relevant time. The Committee, therefore, does not attach any weight to the submission by Mr Ryan, on Mr Harris' behalf, that there was no way for Mr Harris to check the brands other than by obtaining a copy of the foaling slip from New Zealand Thoroughbred Racing. In this regard, the Committee disagrees with the Committee in the Lynds case in which the Committee acknowledged that Mr Lynds had experienced difficulties in obtaining information regarding brands. That particular breach was committed in September 2005 at which time, it is understood, the information would have been readily available from the website. Mr McKenzie submitted that the Committee in the Lynds case was "misled" by the Defendant and this would appear to have been the case.

4. Mr Harris, in not taking the simple steps that were available to him to establish the correct identity of the two fillies, showed a high degree of carelessness, if not recklessness.

The sole mitigating factor, in the Committee's view, is Mr Harris' admission of the breach and his cooperation throughout the course of the inquiry into the matter.

Mr Ryan, in his written submissions, referred to the previous cases of "mistaken identity". These were considered in the context of the previous charge against Mr Harris and the Judicial Committee, after weighing the circumstances against each of those cases, imposed a fine of $600. That was also the fine imposed in the Lynds case. Mr Ryan did not refer to either of those cases in his submissions to us.

The Committee accepts that a fine of $600 was an appropriate fine for Mr Harris' previous breach of Rule 411 (2). The facility to check a horse's brand via the website was not available at the time of that offending. However, we must clearly take into account, in considering penalty for this second breach, that we must in punishing Mr Harris also deter him from offending in a similar manner in the future.

Mr McKenzie did not seek a period of suspension or disqualification in this instance and the Committee agrees that suspension or disqualification is not called for. He did, however, submit that the Committee might consider exercising the discretion given to it by the Rule to adjudge or declare the breach to be a serious racing offence thereby bringing into play a higher range of penalties available. The Committee has given consideration to Mr McKenzie's submission and is satisfied that Mr Harris can be dealt with well within the range of penalties available under the general penalties provisions of Rule 1003. Mr Harris was grossly negligent, even reckless, in taking the Bertolini filly to the races instead of MISS ROSEMARY but, the Committee accepts, there was no intention on his part to deceive. Whilst the Committee accepts Mr McKenzie's submission that intention is not a essential element for an offence to be declared a serious racing offence, the circumstances of the present case do not, in the Committee's view, quite amount to a serious racing offence. The Committee is not prepared to exercise its discretion and declare the breach to be a serious racing offence.

Mr McKenzie referred to the well-established sentencing principles. The Committee has had regard to those principles in determining penalty and, in particular, has had regard to the need to deter Mr Harris from re-offending in a similar way. The previous fine of $600 has proved to be an insufficient deterrent. The Committee has also had regard to the aggravating factors as outlined above and, to a very limited extent in the circumstances, has given Mr Harris credit for his admission of the breach and cooperation throughout the investigation.

Mr Harris is fined the sum of $2,500.00.

Mr Harris is ordered to pay costs of $900.00 to New Zealand Thoroughbred Racing of which the sum of $400.00 is to be paid to the Judicial Control Authority.

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hearing_type: Old Hearing

Rules: 411.2, 1103.4.d

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