Appeal – B Lee

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startdate: 01/01/2001

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hearing_title: Appeal - B Lee

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DECISION OF APPEALS TRIBUNAL

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The appellant, Mr Lee, licensed horseman, has appealed against a penalty of suspension from driving up to and including 21 August 2008 imposed upon him at the meeting of the Auckland Trotting Club on 1 August 2008, upon his being found to be in breach of R 869(2)(a) (excessive use of the whip). He had admitted the charge.  The appeal was conducted by way of a rehearing as there was no transcript available of the Judicial Committee’s hearing as to penalty. The Tribunal heard oral submissions from both parties.

Appellant’s submissions

Mr Lee submitted that the penalties imposed upon him on 25 July and 1 August 2008 were inconsistent with other penalties imposed for breaches of R 869(2)(a) in similar circumstances. While the Tribunal emphasised to Mr Lee that it was only the latter penalty that was being appealed, he stated he believed that when the two penalties were considered together, they demonstrated that he had been dealt with more harshly than other licence holders. In support of this contention, Mr Lee referred the Tribunal to penalties imposed upon Mr Ferguson on the same night (1 August) and Ms Chilcott and Mr Nairn on earlier occasions. In each of these cases, he stated, lesser penalties (fines ranging between $250 and $400) had been imposed than had been imposed upon him on 1 August. He also stated that frequently a lesser penalty had been imposed by the Judicial Committee than that that had been recommended by the stipendiary steward on the night. Whereas, he said, a higher penalty than that recommended by the stipendiary steward, had been imposed upon him on each occasion (ie 25 July and 1 August). The Tribunal emphasised to Mr Lee that these submissions did not address R 1207(2)(b) which provides that the Tribunal can only interfere with a penalty where it regards that penalty as being manifestly excessive or inappropriate. In response, Mr Lee stated, without any supporting evidence, that his income from harness racing, which he was involved in only part-time, was $250 per week. We were left to draw the inference that the penalty equated to a fine of $750 and was therefore manifestly excessive.

Mr Lee also questioned Mr Taumanu as to matters relating to the imposition of penalty upon Mr Lee on July 25 for unnecessary use of the whip, and, in particular what Mr Taumanu’s recommendation as to penalty was on the night and whether he had described Mr Lee’s record as being “clear” with respect to this Rule. Mr Taumanu stated he was unable to recollect the specific comment he had made concerning Mr Lee’s record, nor the penalty that he had recommended on that occasion.

Respondent’s submissions

Mr Muirhead, stipendiary steward, presented submissions on behalf of HRNZ. He stated that the penalty was not excessive, let alone manifestly excessive. He emphasised that penalties imposed upon other drivers had to be carefully considered as the circumstances of each case were different and, in particular, drivers’ records for breaches of this rule differed. He emphasised Mr Lee had been fined for a breach of the very rule that he had admitted on 1 August, only a week before, and on that earlier occasion he had been warned by the Judicial Committee of the likelihood of a suspension being imposed, should there be a repeat. He questioned Mr Lee’s figure of $250 per week, but said, even if that were correct, the penalty was still not excessive. He also questioned whether there was any inconsistency at all in the penalties that Mr Lee had drawn to the Tribunal’s attention. He believed the penalties showed consistency, especially where there was a repeated breach. In Mr Lee’s case, he emphasised, the repetition was within a week. This was not the case with any of the allegedly comparable cases that Mr Lee had drawn to the Tribunal’s attention.

Decision

R 1207(2)(b) requires the Tribunal to be satisfied that the penalty is manifestly excessive or inappropriate before we may interfere. Mr Lee has, we are informed by Mr Muirhead, about 2 drives per meeting. The 3 day suspension thus equates to 6 drives. Mr Lee did not dispute this figure. Whether we view the suspension as equating to a penalty of $300, or the $750 as Mr Lee submitted, we are not satisfied the penalty is manifestly excessive or inappropriate. Indeed, the penalty could be viewed as lenient when the Tribunal has regard to Mr Lee’s record with respect to this Rule, which also includes 4 breaches between July 2006 and June 2007. The comparisons Mr Lee makes with other drivers have to be viewed very carefully. The circumstances of each breach vary greatly, as do the drivers’ records and experience. We see no inconsistency, marked or otherwise. Whether or not the recommendation of the stipendiary steward on the night is followed or is departed from through the imposition of a higher or lower penalty is readily explainable by the fact that the raceday Committee is appointed by the Judicial Control Authority, which is an independent statutory body, and thus an independent judgment has been brought to bear on the particular matter. In Mr Lee’s case, the 1 August breach followed immediately upon a previous breach of the same rule (25 July, albeit in different circumstances, in that it was excessive use in contrast to unnecessary use). This was the very next meeting at which Mr Lee drove and the breach occurred despite a clear warning being given to Mr Lee by the Judicial Committee. Any thoughts that Mr Lee might have had that he would start with a clean slate at the commencement of a new season should have been clearly dispelled by this warning.

Attendance at raceday hearing

Mr Muirhead stated on more than one occasion that he believed there would have been no appeal by Mr Lee had he attended the hearing of the matter on the night by the Judicial Committee. We believe there is some force to this submission. When questioned by the Tribunal as to the reason for his non-attendance, despite his being informed by the stipendiary steward that a 2 day suspension would be recommended, Mr Lee said that he was busy with another horse on the night, that there had been considerable delay in the matter being heard, and did not believe his presence would have made any difference to the penalty ultimately imposed. He acknowledged that he had not told the Registrar why he would not attend. The Tribunal believes that should such an issue arise in the future, and, in particular, where a substantial fine or suspension is a likely penalty upon a finding there is a breach of the Rules, that raceday Committees would be well advised to ensure that they are aware of the licence holder’s reasons for not attending. An obvious way in which this could be achieved is by the defendant being called before the Committee and questioned as to the reasons for his or her non-appearance. An alternative course of action would be to request that the Registrar raise the issue with the defendant and record on the information the reason for non-attendance. This Tribunal would view the first course of action as preferable in that any possible confusion is likely to be avoided and, if appropriate, the Committee would be better placed to take the necessary steps to facilitate attendance at the hearing of the charge.

Costs

Mr Muirhead has requested that the filing fee be forfeited. He has very responsibly not requested costs for HRNZ. However, he has said costs for the Judicial Control Authority are appropriate. He suggested that the appeal could be viewed as frivolous. While we have not found the decision on this appeal to be finely balanced, we accept that the appeal was brought in good faith and that Mr Lee does believe he has a genuine grievance in that, in his view, he has been dealt with more harshly than other licence holders. Mr Lee made no submissions as to costs but requested that his filing fee not be forfeited.

We do not seek to indemnify the Judicial Control Authority through the imposition of full costs against Mr Lee. Costs should be fair and reasonable. Mr Lee’s filing fee of $250 is forfeited and costs are awarded to the Judicial Control Authority in the sum of $500.

Dated at Dunedin this 13^th day of August 2008.

G Hall                          Chairman.

D Johnstone                 Member

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hearing_type: Old Hearing

Rules: 869.2.a, 1207.2.b

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