Appeal – AR Beck v RIU 11 April 2012 – Decision dated 16 May 2012

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decisiondate: 06/05/2012

hearing_title: Appeal - AR Beck v RIU 11 April 2012 - Decision dated 16 May 2012

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE APPEALS TRIBUNAL

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN ALLAN ROBERT BECK

Appellant

AND BARRY ALEXANDER KITTO

Respondent

Appeals Tribunal: Bruce Squire QC (Chairman) - Tim Gresson (Appeals Tribunal Member)

Counsel: Ms M J Thomas and Mr R Donnelly – Counsel for Mr Beck, Mr C J Lange – Counsel for HRNZ

Date of Hearing: 11 April 2012

DECISION OF APPEALS TRIBUNAL

1. On 3 February 2012 before a Judicial Committee duly constituted under the New Zealand Rules of Harness Racing (“the Rules”) the Appellant Mr Beck admitted a charge of administering a prohibited substance namely Aminorex to a horse named “Call of Duty” in breach of Rule 1001 (1) (q) of the Rules. “Call of Duty” had run in, and was placed 2nd in Race 3 of the Invercargill Harness Racing Club’s race meeting at Ascot Park Raceway on 20 September 2011. The charge having been admitted by Mr Beck the Judicial Committee found the breach of the Rules proved in accordance with Rule 1111 (1) (d) and imposed on him a fine of $10,000.00 and ordered him to pay costs to the Judicial Control Authority in the sum of $500.00. “Call of Duty” was disqualified from its placing in the race under Rule 1004D and the placings in the race were revised accordingly.

2. On 17 February 2012 by Notice signed by his Counsel, Mr Beck lodged an appeal against the decision of the Judicial Committee. The stated grounds of appeal as they appear in the Notice are:

(i)  that a guilty plea should not have been entered as the facts cannot support a finding of a breach of Rule 1001 (1) (q); and

(ii) that the penalty imposed was manifestly excessive.

In a Minute issued on 14 March 2012 the Tribunal raised a preliminary question in relation to the first ground of appeal as to whether by reason of Mr Beck having admitted the charge and the operation of Rule 1111 (1) (d) which provides:

“(d) if a defendant admits the breach of these Rules, the Judicial Committee shall find the breach proved”.

it was open to Mr Beck to appeal against the finding of the Judicial Committee the charge had been proved. The Tribunal sought from Counsel written submissions on the point which were duly provided and expanded upon by Counsel at the hearing of the appeal in Dunedin on 11 April 2012.

3. The argument advanced by Counsel for Mr Beck a right of appeal was available notwithstanding the entry of a guilty plea to the charge was that the Judicial Committee made an error of principle in accepting the plea when the facts “as…determined by the Committee” were not capable of constituting the charge brought against Mr Beck. In amplification of the submission Counsel claimed that despite Rule 1111 (1) (d) the Committee did not have to accept the plea and sub-clauses (a) and (b) of Rule 1111 (1) conferring on the Committee the power to conduct hearings as it thinks fit and to receive any relevant evidence whether legally admissible or not, enabled it in the discharge of its obligation to conduct the hearing fairly, to avoid strict compliance with Rule 1111 (1) (d). In further support of the submission Counsel referred to s.31 Racing Act 2003 and to ss 6 and 27 (1) of the New Zealand Bill of Rights Act 1990 which he said, in combination, required Rule 1111 (1) (d) to be interpreted and applied consistently with the right of Mr Beck to a fair hearing. A fair hearing it was submitted meant the Committee had a discretion as to whether a plea of guilty was accepted, and that for the reasons mentioned the discretion had been exercised wrongly by the Judicial Committee in this case.

4. Counsel for HRNZ on the other hand submitted there was no right of appeal available under the rules in relation to the finding the charge had been proved. Inevitably Counsel’s submission was based on what was submitted to be the mandatory requirement in Rule 1111 (1) (b) to find the charge proved on the breach of the rule having been admitted and the provisions of s.39 (2) (b) of the Racing Act 2003 which requires a Judicial Committee constituted under the Rules:

“…to hear, adjudicate on and determine any matter that is brought before it in accordance with the racing rules of a code to which this section applies”.

(the underlining is for emphasis).

Counsel submitted this provision and the clear terms of Rule 1111 (1) (d) required a Judicial Committee to find a breach of the rules proved where such breach was admitted and the Judicial Committee in this case had no lawful discretion to do otherwise.

5. The rights of appeal to an Appeals Tribunal are set out in Rule 1201. Sub-rule (1) of that rule, in sub-clauses (a) to (h) sets out various decisions in respect of which it is expressly provided no right of appeal lies. These do not include cases in which breaches of the rules have been admitted before a Judicial Committee. Sub-rule (2) provides for rights of appeal from Judicial Committee determinations where there has been a breach of the rules in the following terms:

“(2) Subject to sub-rule (1) hereof;

(a) where on the determination of an information by the Judicial Committee, the Judicial Committee in its decision:

(i) find, or do not find a breach of these Rules proved;
(ii) make an order or decline to make an order;
(iii) impose any penalty or decline to impose any penalty;

the informant or the defendant may appeal to the Appeals Tribunal against the decision of the Judicial Committee”.

Rule 1205 (2) is also relevant to the issue and provides:

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

6. Sub-clauses (a) (ii) and (iii) are not relevant to the issue under consideration but in so far as Rule 1111 (1) (d) requires a Judicial Committee, at least notionally, to find a breach of the rule proved where the breach is admitted, there appears to be a finding to which sub-clause (a) (i) literally applies. That view however is expressed in qualified terms. An admission of a breach of the rules is just that; it is not necessarily an admission of all the matters an Informant may have relied on to prove a breach of the rules had it been put to proof. Ordinarily where a breach of the rules is admitted the Informant will put before the Judicial Committee a Summary of Facts outlining the circumstances in which the breach was committed and any other matters it considers relevant to the issue of penalty. It is open to a Defendant to challenge any of those matters except those aspects which are the components of the charge admitted. In those cases in which there is a dispute between the parties as to matters advanced either by the Informant or Defendant which are not components of the charge, but which may nonetheless be relevant to the assessment of penalty, it is open to the Judicial Committee to hold a disputed facts hearing to determine the issues. But those are matters relating to penalty and may be subject to appeal under Rule 1201 (2) (a) (iii).

7. An admission of a breach of the rules dispenses with the need for evidentiary proof of the components of the breach and at the same time obviates the need for a Judicial Committee to make a finding of breach based on evidence. Rule 1205 (2) set out earlier, requires all appeals, except where the Appeals Tribunal directs otherwise, to be by way of re-hearing based on evidence adduced before the body whose decision is appealed against. That requirement applies to appeals brought under Rule 1201 (2) (a) (i). But where a breach of the rules is admitted there is no evidence led to prove the components of the breach, and notwithstanding Rule 1111 (1) (d), no finding made by a Judicial Committee capable of being appealed against in terms which correspond with the requirements of the rules as to how appeals are to be dealt with.

8. For those reasons under the rules as they presently stand we are doubtful an appeal lies to an Appeals Tribunal against a finding by a Judicial Committee under Rule 1111 (1) (d) that a breach of the rules has been proved where the breach has been admitted. However we are reluctant to rule out the possibility of there being a right of appeal under Rule 1201 (2) (a) (i) in circumstances where a Defendant may have admitted a charge alleging a breach of the rule when in fact no such rule exists, or as a matter of law, the breach of the rule alleged could not properly be the subject of a charge brought under the rules, in the absence of those issues being fully argued in a case in which they properly arise. For those reasons and because we are able to deal with this appeal on other grounds, we make no formal ruling as to whether there is a right of appeal available to Mr Beck in this case and proceed on the assumption the appeal is properly brought. We would however draw the attention of those responsible for the rules to the matters we have referred to and suggest some clarification might be considered desirable.

The First Ground of Appeal:

9. The first ground of appeal advanced on Mr Beck’s behalf is set out in paragraph 2 of this decision. To deal with it, it is necessary to set out the facts which were put before the Judicial Committee by way of a Statement of Facts prepared by the Informant. The Statement of Facts (summarised) was to the following effect:

(i) following the race in which it was placed 2nd, “Call of Duty” was swabbed and a urine sample obtained. The sample was sent to the New Zealand Racing Laboratory for analysis;

(ii) analysis of the swab taken reported the detection of Aminorex and Levamisole. Aminorex was described as being a stimulant drug and an equine metabolite of Levamisole. Aminorex is a prohibited substance under the Prohibited Substance Regulations approved by HRNZ and effective from 1 November 2007.

(iii) Mr Beck was interviewed by a Racing Investigator shortly after the results of the analysis were reported on 25 October 2011. In the course of the interview Mr Beck told the Racing Investigator he had administered what he thought was 20 mls of a product called Levicare Hi Mineral which contains 4% Levamisole to the horse at about midday on the Saturday prior to the race meeting at Invercargill the following Tuesday. He said he thought the administration would have been about 74 hours prior to “Call of Duty” racing. He said he used the product because the horse had a cough and he was “pretty sure” the veterinarian had told him it had a 3 day withholding time. Subsequently it was discovered the syringe Mr Beck had used to administer the product was in fact a 35 ml syringe with the result he inadvertently administered nearly twice the amount of the product he thought he was giving to the horse. The 35 ml syringe used by Mr Beck was subsequently analysed at the New Zealand Racing Laboratory along with a control sample from the Levicare Hi Mineral container. Levamisole was detected in both items.

10. In a report provided to the Judicial Committee the Chief Veterinarian for Harness Racing New Zealand stated that Aminorex was detectable for over 50 hours after administration of Levamisole. The latter substance however was virtually undetectable after 24 hours. A document produced to the Judicial Committee entitled “The Period of Detection List for NZEVA Veterinarians” dated 23 September 2010 however listed the detection time for Aminorex as being three days with advice to add a further 24 hours buffer time. The Judicial Committee was advised the listed detection time had been increased to four days a few weeks after Mr Beck had administered Levamisole to “Call of Duty”.

11. In submissions to the Committee on behalf of Mr Beck it was explained Levamisole had been used by him because it had been found to be effective in building up the immune systems of horses. The recommended dose for maximum therapeutic benefit was said to be 60 ml for three days to treat for coughs and colds.

12. Mr Beck did not claim to be not responsible for the administration of the prohibited substance to the horse. In explanation to the Judicial Committee he acknowledged responsibility for the administration and at no stage claimed he was unaware Aminorex was a prohibited substance or that the product he administered to the horse contained Levamisole.

13. Against that background Counsel for Mr Beck submitted the administration which was the subject of the charge was either that which occurred approximately three days prior to the race in which “Call of Duty” ran when it was given the product Levicare Hi Mineral containing Levamisole or within 24 hours of the race when Mr Beck used the syringe he thought was contaminated by Levamisole to administer minerals to the horse. Counsel submitted the first administration was what he described as “purposeful” and the second accidental.

14. Counsel then made three submissions relating to the charge which formed the basis of his principal contention the Judicial Committee erred in accepting the plea of guilty entered by Mr Beck. Counsel’s points were:

(a) administration by reason of the unintentional contamination of the syringe used to administer minerals to the horse 24 hours prior to the race did not amount to administration for the purposes of Rule 1001 (1) (q);

(b) administration of a prohibited substance within the Prohibited Substance Regulations which is not also an Out of Competition prohibited substance three days prior to the race could not constitute administration to a horse which was taken or was to be taken to a racecourse for the purpose of engaging in a race. It was submitted that applying Rule 1001 (1) (q) to the circumstances of Mr Beck’s case would eliminate any distinction between the administration of Out of Competition prohibited substances and prohibited substances otherwise listed in the Prohibited Substance Regulations;

(c) that Rule 1001 (1) (q) is a rule the breach of which requires proof by the Informant of what Counsel described as “mens rea”; that is that the person charged was aware of the prohibited substance that was administered.

None of these issues were put to the Judicial Committee at the hearing of the charge and we do not have the benefit of any ruling by the Judicial Committee on them. That may be because Mr Beck was not represented by Counsel at the hearing before the Judicial Committee. While for that reason we are prepared in this case to overlook the fact the issues were not raised with the Judicial Committee before being pursued on appeal, we think that as a matter of good practice where issues of this kind arise in cases they should be raised with the Judicial Committee at first instance so that Appeals Tribunals have the benefit of a considered decision of a Judicial Committee as part of the record on which it deals with appeals brought and pursued under the rules.

15. The three points made by Counsel for Mr Beck to support the first ground of appeal we think can be dealt with quite shortly. Rule 1008 provides:

“In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:

(a) it shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the rule; and

(b) any breach of a rule shall be considered as an offence of strict liability”

In our view there is nothing in Rule 1001 (1) (q) itself or elsewhere within the rules which requires a breach of the rule to be considered other than an offence of strict liability as required by Rule 1008 (b). For the same reasons we are satisfied the Informant is not required to prove an intention to commit a breach of Rule 1001 (1) (q) where a breach of that rule is charged. Counsel for Mr Beck submitted a “mens rea” requirement should be imputed into Rule 1001 (1) (q), despite the clear provisions of Rule 1008, by reason of the fact a breach is a serious racing offence under the rules in contrast with a breach of Rule 1004 (2) which has been held in a previous decision of an Appeals Tribunal to be the equivalent of an offence of absolute liability. We are not quite sure of the precise basis why Counsel contends the decision in that case impacts on the application of Rule 1008 to Rule 1001 (1) (q) but whatever the submission may be we are satisfied that Rule 1001 (1) (q) must be interpreted and applied as required by Rule 1008.

16. That being the case the points made by Counsel as outlined in (a) and (c) of paragraph 14 of this decision are without substance. Proof of a breach of Rule 1001 (1) (q) does not require the Informant to prove deliberate administration, nor is there any requirement for the Informant to prove the person charged knew the nature of the substance administered or that it was a prohibited substance within the Prohibited Substance Regulations. Because a breach of Rule 1001 (1) (q) is an “offence of strict liability” it is enough (in this case) for the Informant to simply prove Mr Beck administered a substance to the horse concerned and that the substance was a prohibited substance within the Prohibited Substance Regulations. It is then for Mr Beck to prove on balance the breach of the rule occurred without fault on his part.

17. The issue raised by Counsel set out in (b) of paragraph 14, as we see it, is a factual aspect of the charge to be proved by the Informant in the usual way. The Informant must prove in any case alleging a breach of Rule 1001 (1) (q) that at the time of the administration the horse concerned was either taken to a racecourse for the purpose of engaging in a race or was to be taken to a racecourse for that purpose. The latter requirement in our view, where relied on by an Informant, must involve sufficient evidence of forward arrangements to race rather than reliance on a more abstract proposition that because the horse concerned is a racehorse, it will for that reason, at some undefined time in the future, be taken to a racecourse to race. Interpreted and applied in that way, as it was undoubtedly intended to be, Rule 1001 (1) (q) will not cause any difficulties of the kind adverted to in Counsel’s submissions as between Out of Competition prohibited substances and prohibited substances otherwise listed in the Prohibited Substance Regulations.

18. For those reasons we are satisfied the matters put before the Judicial Committee in this case by way of the Statement of Facts, sufficiently and properly made out the breach of Rule 1001 (1) (q) with which Mr Beck was charged and there was no reason why the Judicial Committee should not have accepted his admission of breach of the rule as it did. The first ground of appeal is accordingly dismissed.

The Second Ground of Appeal: Penalty

19. In fixing penalty the Judicial Committee began by noting the penalties provided for breach of Rule 1001 (1) (q) as set out in Rule 1001 (2) and the power to disqualify the horse provided for in Rule 1001 (3). The Committee further noted the mandatory requirement to disqualify “Call of Duty” from the race in which it placed 2nd at the race meeting on 20 September 2011 as required by Rule 1004D. The Committee then referred to the decision of the Appeals Tribunal in S (17.11.05) in which the Tribunal stated that the starting point for a breach of Rule 1001 (1) (q) should be disqualification or suspension for a period of 12 months before aggravating and mitigating factors are brought to account. The Committee noted however the Appeals Tribunal in that case recognised that in exceptional circumstances a fine might be considered an appropriate penalty and that Judicial Committees should retain a “genuine discretion” to impose such penalties where the circumstances warranted it.

20. The Judicial Committee then reviewed the circumstances on which the breach of Rule 1001 (1) (q) occurred in this case and noted that while it accepted Mr Beck did not intend to breach the rule he was nonetheless careless in not ensuring the syringe used to administer the minerals to “Call of Duty” the day prior to the race had not been properly cleaned after use, or a different syringe used. The Committee also recorded that Mr Beck had been mistaken as to the quantity of Levamisole administered to the horse on the preceding Saturday and that he had failed to “factor in” a 24 hour buffer in calculating the withholding time for Aminorex. For those reasons the Committee found there were no exceptional circumstances relating to the breach which would have warranted any departure from the starting point identified by the Appeals Tribunal in S.

21. The Committee then turned to assess the culpability of Mr Beck and matters it was able to have regard to by reason of the provisions of Rule 1114 (2) (c) and (d). In doing so it made a number of findings which, for convenience, we list as follows:

(i) there was ample evidence before the Committee to satisfy it that Mr Beck was a man of good character;

(ii) Mr Beck had cooperated fully with the Inquiry which led to him being charged with a breach of Rule 1001 (1) (q). The Committee noted that had he been less cooperative it is likely he would have been charged with a breach of the drug negligence rule which carried lesser penalties than those prescribed for a serious racing offence;

(iii) Mr Beck readily admitted his breach of Rule 1001 (1) (q) at the first opportunity and had demonstrated genuine remorse for his actions;

(iv) Mr Beck had not previously been found guilty of a breach of Rule 1001 (1) (q) or any related rule;

(v) harness racing was Mr Beck’s principal source of income supplemented by farming. Disqualification or suspension would accordingly have had a substantial impact on his ability to work and earn an income on which to support his family.

The Committee then referred by way of comparison to the decision in C (16.8.04) in which in circumstances which the Judicial Committee thought involved greater culpability than that of Mr Beck in the present case, a fine of $6,000.00 was imposed. Although it did not expressly say so, the Committee proceeded on the footing Mr Beck fell within the exceptional circumstances exception referred to in S enabling it to exercise its “genuine discretion” to impose a financial penalty only. Noting the need to uphold the integrity of the harness racing industry and to maintain the confidence of the public the Judicial Committee imposed a fine of $10,000.00 and ordered Mr Beck to pay costs to the Judicial Control Authority in the sum of $500.00.

22. Counsel for Mr Beck submitted the fine of $10,000.00 imposed by the Judicial Committee was manifestly excessive in the circumstances. It was submitted that taking account of the mitigating factors acknowledged by the Judicial Committee, the fine ought to have been “…in the vicinity of hundreds of dollars…” rather than at the level imposed. In that regard Counsel claimed the Judicial Committee had selected too high a starting point which it was said ought to have been in the vicinity of $2,000.00 having regard to the fact the administration which formed the subject of the charge was neither characterised as deliberate or reckless by the Judicial Committee and the need for emphasis on deterrence in this case was accordingly not so prominent as in cases where the breach was within those categories. In support of those submissions Counsel referred the Tribunal to the decision of the Judicial Committee in the case of S (16.1.12) but that case involved charges brought under Rule 1004 (6) which has a quite different penalty regime from the charge alleging a breach of Rule 1001 (1) (q) and we have gained no assistance from that decision.

23. We do not accept the submission the fine imposed on Mr Beck was manifestly excessive in the circumstances. Having regard to the various observations of the Appeals Tribunal in S (17.11.05) which we do not think it necessary to detail here, and which the Judicial Committee in this case was obliged to give effect to, we are inclined to the view that Mr Beck has been the recipient of a very benign interpretation by the Judicial Committee of what constitutes exceptional circumstances justifying a departure from the starting point of twelve months disqualification or suspension identified in that case. We think it is distinctly arguable as to whether the various factors identified by the Judicial Committee (singularly or in combination) justifying the imposition of a financial penalty only in this case in fact amount to exceptional circumstances warranting such a departure. But in the absence of any appeal by the Informant against the penalty imposed, or any prior notification to Mr Beck of an intention to seek an increase in penalty, we are not inclined to disturb the exercise of the Judicial Committee’s discretion in this case, notwithstanding the powers we have under Rule 1207 (1) (c) and (2) (b) (i). It is enough to record the decision on penalty in this case should be confined to its particular facts and should be regarded as without precedent value.

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24. The fine imposed on Mr Beck was well within the range properly open to the Judicial Committee. It follows the appeal against the penalty imposed on Mr Beck is dismissed.

Costs:

25. We require submissions from Counsel on the question of costs. Counsel for HRNZ is to take responsibility for ascertaining the costs of the Judicial Control Authority as well as HRNZ and is to file his submissions by 5:00 pm on Friday 25 May 2012. Counsel for Mr Beck are to file their submissions in reply by 5:00 pm on Friday 1 June 2012. If that timetable causes any Counsel difficulty beyond mere inconvenience leave is reserved to apply.

DATED at Wellington this 16th day of May 2012

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Bruce Squire QC (Chairman)
Signed: pursuant to Rule 1207 (4)

hearing_type: Non-race day

Rules: 1001(1)(q)

Informant: Mr AR Beck - Trainer/Part Owner

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PersonPresent: Ms MJ Thomas and Mr R Donnelly - Counsel for Mr Beck, Mr CJ Lange - Counsel for HRNZ

Respondent: Mr B Kitto - Racecourse Inspector representing the Racing Integrity Unit

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