Appeal – D Dwyer

hearingid: 53df41b615309e0b10145591fc0eb234

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Appeal - D Dwyer

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Decision:

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1. At the Counties Racing Club meeting at Pukekohe on 21 March 2007 Mr Dwyer was found guilty of a breach of Rule 304. Mr Dwyer is a licensed trainer and it is said that he did assault the plating inspector, Mr K Crampton

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1. Nature of Appeal
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2. At the Counties Racing Club meeting at Pukekohe on 21 March 2007 Mr Dwyer was found guilty of a breach of Rule 304. Mr Dwyer is a licensed trainer and it is said that he did assault the plating inspector, Mr K Crampton, when that person was officiating at the meeting and in doing so was guilty of misconduct.
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3. It is contended for Mr Dwyer that the evidence did not justify the finding of the Judicial Committee; that is to say, that the evidence offered did not prove guilt. Further, it was said that the penalty, a fine of $750, was excessive.
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4. Mr Carter raised two further grounds of appeal:
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• That the Judicial Committee should not have heard the charge on race day and the hearing should have been adjourned to a later date;
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• That Mr Dwyer had the right to legal advice and, if he chose, legal representation.
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2.                Preliminary issue

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2.1             In opening Mr Carter sought to put evidence before the Tribunal. He indicated there was a statement from Mr Dwyer. Further, he advised there was a statement from the strapper employed by Mr Dwyer on 21 March, a Ms Dallas Juggernaut. Both Mr Dwyer and Ms Juggernaut were present at the hearing before the Tribunal.

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2.2           No advice had been received that an application would be made to call evidence at the appeal hearing. When questioned about this Mr Carter explained that he had recently returned from overseas leave and that there had been a bereavement in his family. If at all possible applications of this kind should be notified in advance of the hearing and the material which it is sought to tender made available to the Respondent and the Tribunal. The Tribunal accepts that the circumstances here were exceptional and excused departure from that practice.

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2.3            Mr McKenzie did not object to the Tribunal looking at the material but did emphasise, first, that Mr Dwyer had given detailed evidence at the hearing and, secondly, that material received in this way and not tested by cross-examination could be accorded only limited weight.

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2.4          The Tribunal looked at the material and ruled that it would first hear both Mr Carter and Mr McKenzie present their submissions on all of the grounds of appeal and would then indicate the attitude taken to the statements of Mr Dwyer and Ms Juggernaut. In the event, at the conclusion of the submissions, the Tribunal ruled that it would receive the statements but made clear that these could be accorded limited weight in the circumstances.

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Turning now to the grounds of appeal. It is convenient to deal with these in an order somewhat different from that adopted for the Appellant.

3.1          Mr Dwyer requested an adjournment. This was refused. Regrettably the Judicial Committee did not give reasons for its decision.

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3.2          The allegation against Mr Dwyer arose out of events which were said to have occurred before race 10. That was the last race of the day. The hearing took place almost immediately after the race. Mr Dwyer immediately sought an adjournment, emphasizing that he wanted legal representation and that the allegation against him (in his view) amounted to criminal conduct, being an allegation of assault. Mr McKenzie urged the Judicial Committee to embark upon the hearing immediately. In so doing he advised the Committee that under Rule 1118(1) there was a provision that the Committee make a decision to determine the matter on the day. That is not the issue with which Rule 1118(1) is concerned. That Rule provides that where there is a hearing which is held on that day ? that is to say, race day ? then the person charged shall not be represented by counsel. Plainly there is a power to adjourn hearings. This was common ground. Rule 1118(4) provides that at such an adjourned hearing the person charged may be represented by counsel. This was an experienced Judicial Committee. The transcript clearly shows that the Committee knew there was a power to adjourn and it does not appear to have been influenced by the inadvertent misquotation of Rule 1118(1).

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3.3          The Judicial Committee was exercising a discretionary power. Plainly the Rules recognise that in some circumstances it is not appropriate to conduct a hearing on race day. There may be any number of circumstances which could bear on that decision. The nature of the charge is clearly one such circumstance. Where there is a very serious allegation which might result in a significant financial penalty or a suspension or disqualification such considerations would weigh in favour of an adjournment. It may not be possible on race day to assemble all persons who can give relevant evidence. In that regard it is said here that Ms Juggernaut was close by when the alleged incident occurred but was not able to be at the hearing. Mr Dwyer had no opportunity to speak with her before the hearing commenced. Immediately following race 10 Ms Juggernaut had taken Mr Dwyer's horse Jail House to the stables and remained there. When considering an application for adjournment a Judicial Committee should ensure that the person charged has had sufficient time to appreciate the nature of the allegation and be in a position to meet that. Mr Carter says that his client did not have sufficient time to gather his thoughts and prepare his case.

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3.4    Mr McKenzie contended before the Tribunal, as he did before the Judicial Committee, that all the necessary persons who may have been able to speak about the incident were present. Further, he said that the hearing should proceed while the incident was fresh in the memory of the persons concerned. Mr McKenzie emphasised that the incident was relatively minor and did not justify having to assemble all the parties on some later occasion.

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3.5          Ms Juggernaut was leading the horse Jail House. When the horse was stopped for the inspection she must necessarily have been very close to the incident. There are references to Ms Juggernaut ? but not by name ? in the transcript of evidence. Mr Crampton refers to her at page 5 and Mr McKenzie at the top of page 11. It is unfortunate that efforts were not made to have Ms Juggernaut brought before the Judicial Committee on 21 March.

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3.6          The hearing took place immediately after the last race and the Tribunal was told that it did not conclude until around 7pm. A hearing of this kind is not best conducted at the conclusion of a long day's racing. Mr Dwyer was plainly anxious about the horses in his care. While anxious to get to the horses Mr Dwyer did not say anything to the Judicial Committee to indicate that Ms Juggernaut might be able to give relevant evidence.

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3.7          In the circumstances outlined the Judicial Committee was entitled to grant the adjournment. The issue was finely balanced. While a hearing on another occasion may have allowed a rather more considered approach to the giving of evidence the Tribunal does not believe that the Judicial Committee was in error. The issue of the adjournment was procedural in character and the Tribunal will not substitute its view for that of the Judicial Committee unless persuaded that the Judicial Committee was plainly wrong. That was not the case here. Nor is the Tribunal persuaded that in the result there was any real danger that Mr Dwyer was prejudiced by what took place. The only person not present at the race day hearing who could add anything was Ms Juggernaut. Later in this decision her account of events will be considered.

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4.1          Mr Carter made extensive submissions based around Sections 24 and 27 of the New Zealand Bill of Rights Act. Section 24 is to the following effect:

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Section 27 provides ?

1. Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

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4.2          Mr Carter's submissions were directed in part to the right to consult and instruct a lawyer and in part to there being adequate time to prepare an answer to the allegation. The latter submission was directed primarily to the question of the adjournment sought and refused.

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4.3          Mr McKenzie had anticipated the Appellant's submission. He referred the Tribunal to clause 17(1) of Schedule 3 to the Racing Act 2003. This provides:

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No person may be represented by counsel at any hearing held by a Judicial Committee for any matters that arises on any race day and that is held on that day

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Mr McKenzie went further. He had helpfully obtained from the office of the Attorney General the advice provided by the Ministry of Justice on the consistency of the Racing Act with the NZ Bill of Rights Act. A detailed paper was prepared by the Ministry and Mr McKenzie made that available. It is plain from reading the paper that the Ministry recognised that the question of legal representation and the right to a fair hearing while appearing to be prima facie inconsistent with Section 27(1) of the Bill of Rights Act were justified in the interests of certainty and expedition. As an aside the Tribunal observes that the Ministerial paper seems primarily concerned with events relating to the conduct of races rather than allegations of the kind under consideration here.

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Doubtless, in consequence of the Ministerial advice, the Third Schedule to the Racing Act was enacted in the form earlier set out notwithstanding that it might appear to be contrary to the Bill of Rights Act. The provisions of the Racing Act must prevail and the Bill of Rights argument cannot succeed.

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4.4          Mr Carter had a further submission in this area of the appeal. He pointed to the allegation against Mr Dwyer that related to the plating inspector, Mr Crampton, when he was officiating in such ??. . It was said that Mr Crampton was at the time inspecting the lead bags and not acting as a plating inspector. In the Information Mr Crampton is described as the Plating Inspector. There is no dispute that is the position he had on the day in question. The use of the words Plating Inspector in the Information is descriptive. The use of the words when he was officiating in such ?.. are not confined to carrying out the work of a plating inspector. If Mr Crampton was assisting other officials on race day, whether in response to a request or as a volunteer, he was nevertheless at the race meeting in his capacity as plating inspector and the Rules of Racing do not apply to him only when he is in the physical act of inspecting the horses' plates. The Rules of Racing in respect of the conduct of licence holders do not apply only during such time as the licence holder or official is acting in their designated capacity; see Timothy Carter v NZTR (HC Hamilton, CIV-2006-419-841, 7.12.06, Harrison J).

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5.          Was the allegation proved

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5.1          It is as well to quote the precise words of the Information. These are as follows:

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Being a licensed trainer did elbow the plating inspector Mr K Crampton when he was officiating in such a manner as to commit a breach of misconduct of Rule 304

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5.2          After the adjournment application had been refused Mr McKenzie outlined the case to the Judicial Committee. He variously described Mr Dwyer's conduct as elbowing with some force into his kidney region, the side of him and, shortly thereafter, as I am not calling it an assault, I am calling it a misconduct.

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5.3          The complainant, Mr Crampton, gave a clear account, in response to unobjectionable questions, on page 5 of having been elbowed in the stomach. At page 6 he said oh, it was real hard. Later, at page 7, Mr Crampton observed he (Mr Dwyer) pushed his way between me and the horse. Mr McClunie was assisting the stewards calling the horses for each race. He saw nothing but gave evidence of having heard Mr Crampton exclaim certain swear words. No other witness gave evidence of having heard this language. Not all witnesses were questioned on the subject but Mr Williamson was asked directly about this at the foot of page 18 and when asked whether Mr Crampton had made any noise or comment replied I couldn?t say that.

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5.4          Mr Bennett was checking the brands. At page 10 of the transcript he recounts I was doing the brands and Kevin Crampton was checking the lead bag on the horse and Mr Don Dwyer pushed in between them and he elbowed him in the stomach with his left hand.

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At page 13, in answer to a question from a member of the Judicial Committee, Mr Bennett confirmed that he had a full view of the alleged incident.

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5.5          The next witness called was Mr Williamson, an assistant stipendiary steward for NZTR. Included in his evidence in chief was the following account of the incident:

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Mr Crampton was inspecting the horses, um, or checking the horse wrap and lead bag actually and he was approximately may be he was quite close to the horse, may be a foot away from the horse and Mr Dwyer proceeded to go through that gap in a hurried manner I would say. And the way I saw it was more of ? he sort of just gave him a side swipe and I just had to think to myself did I see that right, um, and, he went between the horse and Mr Crampton and gave him a side swipe with his left elbow

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Further in his evidence in chief answering Mr McKenzie Mr Williamson said, at p18:

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No. I never saw an elbow contact him but I pretty much knew what had happened, it was easy to see what had taken place.

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And further, a few lines later in the transcript, there appears this passage:

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Well Mr Crampton's back was to me at the time and Mr Dwyer went between Mr Crampton and the horse so it was ? from my view back on ? is ? I couldn?t see his elbow for Mr Crampton's face.

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When asked what reaction there was from Mr Crampton Mr Williamson recounted as follows:

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As I said, for lack of a better word, he sort of buckled over a little bit. (See foot of p18)

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At page 19 when questioned by Mr Dwyer Mr Williamson said that he could see Mr Dwyer's arm moving. Further, in answer to another question from Mr Dwyer on page 20 Mr Williamson recounted that he did not see the actual contact.

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5.6         Mr Dwyer gave evidence. The very first sentence in the transcript is significant. It is as follows:

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Ok, there was contact made, I am not going to deny that.

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And later in the same passage, at the foot of p20, occurs the following:

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Now the only contact that was made was when I brushed past Kevin Crampton and to be quite honest with you I was heading to the parade ring ?. .

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In answer to a direct question from a member of the Judicial Committee as to whether he had used his elbow Mr Dwyer made a categorical deny; see p21.

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At p22, in answer to Mr McKenzie, Mr Dwyer denied any intention to make contact with the complainant.

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5.7         Mr Dwyer called Ms Hackshaw. She told the Judicial Committee that she is a solicitor and the partner in life of the Appellant, Don Dwyer. At p25 Ms Hackshaw gave a detailed account of leaving the saddling area and walking through the enclosed area where the inspections take place. She refers to the strapper ? Ms Juggernaut ? and goes on to relate we simply walked through the plating area. Further Ms Hackshaw relates there was never any physical or verbal exchange whatever between them.

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It is not possible to reconcile Ms Hackshaw's account with Mr Dwyer's own acknowledgement that there had been contact between himself and the complainant and that he had brushed past Kevin Crampton.

At p27 of the transcript, in answer to a question from the Chairman of the Committee, Ms Hackshaw stated:

5.8      With reference to the material put forward by Mr Carter at the commencement of the hearing the Tribunal indicated, after hearing from both parties, that it would receive the statements but with reservations. In the case of Mr Dwyer he had, of course, given evidence on the day and been questioned by Mr McKenzie and the Committee. The statement tendered for him added little to the evidence which he gave on the day. There is an allegation in the statement that Mr Crampton gave the saddle cloth of the horse Jail Horse a good hard yank and the cloth was left up on the saddle. Mr Dwyer repeats the denial of intentionally elbowing Mr Crampton. Essentially he repeats the evidence he gave before the Judicial Committee saying (para 6 of the statement):

Ms Juggernaut could have been called to give evidence before the Judicial Committee. Self evidently that would have been preferable. A statement received long after the event, and not subject to any prior advice or to cross-examination, must be treated with care. That is the basis upon which the Tribunal has received it. The statement includes two material assertions. These are, first, at para 2:

And I saw Don pushed in past him and pull the number cloth back down.

And then in para 3 as follows:

I was in a position to see if Don had elbowed Mr Crampton and he didn?t. Mr Crampton did not double over or buckle or say anything or exclaim or swear.

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5.9          Mr Dwyer alleged before the Judicial Committee that both Messrs Crampton and Bennett were witnesses who were predisposed against him. He recounted incidents which he said had occurred with these persons on prior occasions. Quite properly the Judicial Committee did not permit a detailed investigation of those claims and it is not appropriate to examine them here. No claim of predisposition or bias could be made against Mr Williamson. He is an employee of NZTR and required by his position to act with integrity towards licence holders. His evidence supports the accounts given by Messrs Crampton and Bennett. Mr Williamson was careful to acknowledge that he did not have a perfect view of the alleged elbowing and characterized it by use of the word side swipe. Further, he gave evidence of having seen the response from Mr Crampton. Mr Dwyer himself acknowledged pushing into the space between Mr Crampton and the horse. He had no business to be there. If the saddle cloth required to be straightened he could easily have asked Mr Crampton to do it or could have waited until the horse left the plating inspection area and done it then. The fact that he got himself into this position is acknowledged by the strapper Ms Juggernaut.

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5.10         The Judicial Committee had the advantage of seeing and hearing the witnesses. Issues of credibility were important; the more so when the one witness called from Mr Dwyer denied there was any contact whatsoever notwithstanding that Mr Dwyer himself acknowledged it. The circumstances in which that contact came about and the extent of it were for the Judicial Committee to assess. Clearly they were influenced, as is this Tribunal, by the confirmatory evidence of Mr Williamson, the assistant stipendiary steward.

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5.11          Appeals under the Rules of Racing proceed by way of rehearing. The Appeal Tribunal must nevertheless give appropriate weight to the decision appealed from. That decision accurately recounts, albeit in summary form, the accounts given by the various witnesses. The Committee in its determination rightly observed that there was no doubt that bodily contact had occurred between Messrs Crampton and Dwyer. There can be no dispute on the evidence that Mr Dwyer initiated that contact. As earlier noted he had no business to do so and could readily have stayed out of it. The extent of the physical actions by Mr Dwyer towards Mr Crampton are difficult to determine. On the evidence of Messrs Crampton and Bennett there was a deliberate elbowing. On the evidence of Mr Williamson there was a deliberate and unnecessary side swipe. The action of a licensed trainer barging in or side swiping a race day official who is going about his legitimate business is unacceptable.

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5.11         For the reasons which have been set out the Tribunal considers that the Judicial Committee was entitled to reach the conclusion that the conduct of Mr Dwyer on 21 March 2007 amounted to misconduct. The expression misconduct is not defined. Rule 304 is in these terms:

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The Judicial Committee was entitled to conclude there was an assault, if not major in character. At the very least what occurred here was an unjustified physical interference with the work of a race day official who was acting in that capacity. It matters not that Mr Crampton was inspecting lead bags rather than plates. The question of whether a plating inspector should assist in that way is not for determination in this proceeding. In doing as he did Mr Dwyer acted in a manner unacceptable for a licensed trainer and the Tribunal is satisfied that such behaviour constituted misconduct

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6.          Penalty

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6.1          Mr Dwyer has an exemplary record over many years. This was acknowledged by Mr McKenzie before the Judicial Committee and again before the Tribunal. Misconduct under the Rules of Racing can involve conduct of the most serious kind going to the validity of the conduct of horse racing. That is reflected in the power to disqualify or suspend the licence holder. Monetary penalties can be imposed up to $10,000. In considering a monetary penalty the proper approach is to begin, as is sometimes said, from the bottom up rather than the top down.

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6.2          The Tribunal is of the view that while the incident that occurred was undoubtedly misconduct it was very brief and entirely out of character. Mr McKenzie suggested to the Judicial Committee that a starting point was a fine of $1,000. When proper regard is had to the nature of what took place on this unfortunate occasion and proper recognition is given to Mr Dwyer's blameless record a fine of $750 is considered to be more than was warranted. A fine of $400 would have been appropriate.

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6.3          There was discussion concerning whether this breach of the Rules by Mr Dwyer would inhibit his ability to train outside New Zealand. Mr McKenzie assured the Tribunal that would not be the case and for its own part the Tribunal expresses the view that this momentary lapse of judgement should not stand in the way of Mr Dwyer pursuing his vocation outside New Zealand should he wish to do so.

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7.1        The finding of misconduct is upheld. The fine of $750 is replaced with a fine of $400. There is no order as to costs. The deposit on the appeal is forfeited.

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7.2         The Tribunal expresses its appreciation to Mr Carter and Mr McKenzie for the assistance which they gave at the hearing.

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Dated at Auckland this day of May 2007

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Murray McKechnie

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Ross Neal

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Rules: 1118.1, 1118.4

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