Appeal DJ Walker v RIU – Decision dated 10 December 2014

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hearing_title: Appeal DJ Walker v RIU - Decision dated 10 December 2014

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BEFORE THE APPEALS TRIBUNAL

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN DAVID JAMES WALKER, Licensed Jockey

Appellant

AND THE RACING INTEGRITY UNIT

Respondent

Appeals Tribunal:

Sir Bruce Robertson KNZM (Chairman)
Mr Bruce Squire QC
Mr Keith Hales

Present:

Mr David Walker, Licensed Jockey
Mr Barry Hart, Lay Advocate representing Mr Walker
Mr Christopher Lange, Counsel for the Racing Integrity Unit
Mr Ross Neal, Co-Chief Stipendiary Steward

Venue: Trentham Racecourse, Wellington

Date: 1 December 2014

DECISION OF APPEALS TRIBUNAL

1. Introduction:

1.1 Following race meetings at Waverley and Otaki on 31 July and 16 August 2014 respectively Mr Walker was charged with four breaches of the New Zealand Thoroughbred Rules of Racing (“the Rules”). The breaches charged were that in race 6 of the Waverley Racing Club meeting and subsequently in race 3 of the Otaki Maori Racing Club meeting, after having placed head to head bets on other horses in the respective races Mr Walker deliberately rode his mounts in the races so as to finish behind the horses he had bet on. Both charges were brought under R. 801(1)(m) of the Rules which provides that a person commits a Serious Racing Offence within the Rules who:

“(m) commits a dishonest or fraudulent act connected with racing or betting associated with racing”

Alternatively to the two charges brought under R. 801(1)(m) Mr Walker was charged with breaches of the betting Rule contained in R. 707(1) which restricts the rights of riders in races as to the horses on which they may bet.

1.2 The maximum penalty for breach of R. 801(1)(m) prescribed by R. 803(2) is disqualification for a period up to life and/or suspension for a period not exceeding 12 months and/or a fine not exceeding $50,000. The maximum penalty prescribed for a breach of R. 707(1) is disqualification for a period not exceeding five years and/or a fine of up to $50,000 (R. 803(2)(b)).

1.3 The charges were heard by a Judicial Committee sitting in Wellington on 18 September 2014. In a decision delivered that day but subsequently released in writing on 25 September 2014 the Judicial Committee found the charge brought under R. 801(1)(m) in relation to race 3 of the Otaki Maori Racing Club meeting proved but because the related charge under R. 707(1) was laid in the alternative it was not required to make any finding on that charge. In relation to the charges laid in respect of race 6 at the Waverley Racing Club meeting on 31 July 2014 the Judicial Committee dismissed the charge brought under R. 801(1)(m) but convicted Mr Walker on the charge brought under R. 707(1) following Mr Walker’s plea of guilty to that charge.

1.4 On 19 September 2014 the Judicial Committee sat to hear submissions on penalty. Mr Walker did not attend the hearing after having advised the Judicial Committee the previous day he might not do so. After hearing submissions from the Racing Integrity Unit the Judicial Committee imposed a period of disqualification of seven years, to commence immediately, on the charge under R. 801(1)(m) and disqualification for a period of one year on the charge brought under R. 707(1). The two periods of disqualification were ordered to run concurrently. In addition Mr Walker was ordered to pay the sum of $1,500 in costs to the Racing Integrity Unit and a similar sum in costs to the Judicial Control Authority.

1.5 On 10 October 2014 Mr Walker lodged an appeal against both the findings of the Judicial Committee on the two charges on which he had been convicted and the penalties imposed. He also applied for a stay of the penalties imposed pending the hearing of his appeal. The Application for a stay of the penalty was heard by this Tribunal on 15 October 2014 and adjourned when the hearing of the appeal was fixed to commence on 1 December 2014. Subsequently Mr Hart, on behalf of Mr Walker, advised that the appeal against the findings of the Judicial Committee on the charges on which Mr Walker had been convicted would not be pursued and the appeal would proceed with only the matter of penalty in issue.

2. Background:

2.1 The factual background to the charges on which Mr Walker was convicted is straightforward and can be explained briefly by reference to the findings of the Judicial Committee.

The Charges Arising from the Waverley Racing Club Meeting

2.2 This meeting was held on 31 July 2014. Mr Walker had been engaged to ride a horse named “Lil Mer” in race 6. Also running in the race was a horse named “Sam I Am”. Mr Walker admitted that prior to the race he placed two head to head bets on “Sam I Am” to beat “Lil Mer”. As events transpired “Lil Mer” finished behind “Sam I Am” and the Racing Integrity Unit alleged that Mr Walker had deliberately ridden his mount in such a way as to ensure that result eventuated. As a result of the placing of the horses in the race Mr Walker collected the sum of $900 from the two bets he made. As indicated above the Judicial Committee was not satisfied on the evidence that Mr Walker had acted in breach of R. 801(1)(m) on this occasion and dismissed the charge. The alternative charge of breach of R. 707(1) however was admitted by Mr Walker.

The Charges Arising from the Otaki Maori Racing Club Meeting

2.3 This meeting was held on 16 August 2014. Mr Walker had been engaged to ride a horse named “Watch Your Man” in race 3 in which another horse named “St Ransom” was running. Prior to the race Mr Walker placed a head to head bet on “St Ransom” which subsequently finished ahead of Mr Walker’s mount in the race. As a result of his successful bet Mr Walker collected winnings of $1,150. After viewing extensive film coverage of the race, and for the reasons set out in its written decision of 25 September 2014, the Judicial Committee found that Mr Walker had acted in breach of R. 801(1)(m) and accordingly was not required to bring in a finding on the alternative charge laid under R. 707(1). Applying the high standard of proof applicable to a charge as serious as that contained in R. 801(1)(m) the Judicial Committee found that:

“… Mr Walker intentionally restrained the horse in the early stages of the race, that he failed to give the horse adequate opportunity to take up a more favourable position in the middle stages of the race when he ought to have done so and that this decision was deliberate … . It is the Committee’s view on a careful viewing of the tapes that Mr Walker could and should have done more in the straight and that he deliberately chose not to do so. He held the horse back.”

3. The Decision of the Judicial Committee:

3.1 As a result of Mr Walker declining to attend before the Judicial Committee on 19 September 2014 and make submissions specifically directed to penalty the Judicial Committee was obliged to proceed with the assessment and imposition of penalty on a basis which took account of matters of mitigation only which had arisen in the course of the hearing the preceding day. In the course of events that day it appears Mr Walker provided the Committee with explanations for the charges he faced which the Committee recorded in its decision were advanced by reference to his personal circumstances. It is not clear from the Judicial Committee’s decision what the personal circumstances were and to what extent they may have been taken into account by the Judicial Committee. In fixing the penalties it imposed the Judicial Committee noted:

• there were well established principles for breaches of the Rules of Racing and in particular breaches which constitute Serious Racing Offences.

• the offending by Mr Walker was corrupt and objectionable and of a level not previously seen in New Zealand.

• there were a wide range of persons who had been “let down” by Mr Walker which included those who had bet on the race and the connections of the horse ridden by Mr Walker at the Otaki Maori Racing Club meeting on 16 August 2014.

3.2 In the result, addressing the charge brought under R. 801(1)(m) the Committee concluded that a significant period of disqualification was called for. In fixing the period of disqualification the Committee referred to a range of decisions contained in the submissions of the RIU and in particular to a decision of the British Racing Authority in 2013 in which a Jockey named Ahern was disqualified for ten years for similar, but more extensive offending. The Judicial Committee disqualified Mr Walker for a period of seven years for breach of the offence against R. 801, the disqualification to commence immediately.

3.3 In relation to the admitted breach of the betting rule by Mr Walker at the Waverley Racing Club meeting on 31 July 2014 the Committee noted that other New Zealand decisions bore little comparison with Mr Walker’s case as they did not have what the Committee referred to as “… the measure of calculation …” that Mr Walker adopted. Further the Judicial Committee noted the decisions referred to were to some extent dated and that with the advent of head to head betting there was a need to reinforce the unacceptability of breaches of the betting rule contained in R. 707. The Judicial Committee concluded that disqualification was required for this offending also and imposed a period of disqualification of one year to run concurrently with the disqualification imposed on the charge under R. 801. In addition Mr Walker was ordered to pay costs to the RIU and the Judicial Control Authority in the sum of $1500 each.

4. The Submissions of the Parties:

4.1 In his submissions to the Tribunal Mr Hart contended that the decision of the Judicial Committee was flawed by reason of defects in process and breaches of the New Zealand Bill of Rights Act 1990. In addition he submitted the decision of the Judicial Committee was erroneous in as much as the decision on penalty was dependent on or influenced by decisions other than those of the Australian and New Zealand Racing Judiciaries. More specifically Mr Hart argued that the disqualification imposed on Mr Walker for breach of R. 801(1)(m) was excessive when compared with the penalty upheld by an Appeals Tribunal in the case of RIU v Bull (4 November 2013) in which Mr Bull had pleaded guilty to three charges brought against him under the Rules of Harness Racing and was disqualified for a total period of one year and two months and ordered to pay costs. Mr Hart submitted that the offending in that case “mirrored” the offending by Mr Walker and that measured against the penalty imposed on Mr Walker in this case, when taken together with his previous good character, riding history and references submitted to the Tribunal, the penalty of seven years disqualification was manifestly excessive. He submitted the penalty should be reduced to eight months disqualification.

4.2 On the other hand Mr Lange for the RIU pointed out that the offending by Mr Walker involved two breaches of the betting rule within little more than a fortnight and that the breaches were carefully planned and calculated. He submitted that the breach of R. 801(1)(m) at the Otaki Maori Racing Club meeting involved one of the most serious breaches within a sporting code which amounted, in effect, to match-fixing. He further submitted the offending against that rule struck at the very heart of the integrity of the horse racing codes, affecting as it did, not only the reputation of and public confidence in the sport but also the betting public, sponsors who provide stake money and the connections of the horses involved. He concluded that the disqualification imposed on Mr Walker was appropriate in the circumstances and necessary to protect and maintain the integrity of the sport and deter repetition of similar conduct by others.

5. Discussion:

5.1 A Serious Racing Offence in breach of R. 801(1)(m) is committed when a person commits a dishonest or fraudulent act connected with racing or being associated with racing. The culpability of the offending which provides the starting point for the assessment of penalty is defined by the characterization of the conduct involved as fraudulent or dishonest. In the present case the charge brought against Mr Walker under that Rule and the finding of the Judicial Committee it had been proved, was not only justified on the evidence but properly reflected the view expressed by the Judicial Committee that the level of offending warranted a significant period of disqualification.

5.2 The maximum penalty for Serious Racing Offences under R. 801 prescribed by sub rule (2) reflects and confirms the serious nature of the offending. The maximum penalty prescribed is disqualification for any period up to life and/or suspension for a period not exceeding 12 months and/or a fine not exceeding $50,000. The fact the maximum penalties are prescribed in the alternative is implicit recognition of the fact that the various Serious Racing Offences identified in R. 801 encompass different degrees of culpability which, in the circumstances of particular cases, will attract different penalties or different combinations of penalties depending on their particular facts. The Serious Racing Offence encompassed within R. 801(1)(m), committed in the circumstances of the present case however must, in our view, inevitably be regarded as one of the most serious of the offences within R. 801 attracting an appropriately condign penalty within the maximum penalty available. Other than in the most exceptional circumstances we doubt that offending under the Rule of the kind Mr Walker has been found guilty of could properly be met by any penalty other than one of disqualification for a substantial period.

5.3 Neither Counsel submitted disqualification was not appropriate in this case but were markedly different in their submissions as to what the appropriate period of disqualification should be. Their differences in that respect lay in the different perspectives of the culpability of the offending and the absence of any indigenous precedent providing guidance. Mr Hart’s complaints about process and the Judicial Committee looking at decisions further afield than Australia and New Zealand were not particularly helpful. To an extent the matters of process he complained of arose from Mr Walker’s election not to be present and make submissions to the Judicial Committee at its hearing on penalty and we do not accept that a Judicial Committee, or this Tribunal, in appropriate circumstances, is confined only to Australian and New Zealand precedents for assistance where such assistance may be helpful in a particular case. Ultimately the single issue for this Tribunal in terms of R. 1007 is whether the period of seven years disqualification imposed by the Judicial Committee was manifestly excessive and if so, what penalty should be imposed in substitution for it.

5.4 There is no doubt in our view that offending of the kind committed by Mt Walker under R. 801(1)(m) goes in a very fundamental way to the heart of the integrity of horse racing upon which participants and the industry and those associated with it rely. The description of it as match-fixing, in context, is not entirely inapt. On that basis alone such offending must call for a condign response. Further the deliberate and calculated nature of the offending committed by Mr Walker as outlined, within just over two weeks of a prior breach of the betting rule committed in similar circumstances means that there is little that can be said in mitigation of the offending itself. On that basis we do not think that on the material the Judicial Committee had before it, when assessing the penalty imposed, although high, was necessarily wrong in taking the view that seven years disqualification was an appropriate penalty in the circumstances.

5.5 We however have had the benefit of submissions and material provided by Mr Hart which were not before the Judicial Committee. Appeals to this Tribunal are by way of rehearing but the Tribunal has the power to receive such further evidence as it thinks fit (R. 1005). We have admitted the further evidence proffered by Mr Hart which, as noted, is confined to a range of references and Mr Walker’s riding record which does not contain any prior offending beyond what might be characterised as riding breaches. Included in Mr Hart’s submissions and relied on by him in the argument he advanced was the case of RIU v Bull referred to earlier. In that case Mr Bull pleaded guilty before a Non-Race Day Judicial Committee to three charges brought under the Rules of Harness Racing. The charges arose from race 1 of the Rangiora Harness Racing Club meeting on 7 April 2013. The first charge alleged a breach of the betting rules in that Mr Bull placed bets on horses in the race other than the horse he was driving. The second charge alleged that in the same race he intentionally failed to drive his horse out. A third charge alleged that he had given a false and misleading statement to Stipendiary Stewards following the race when he gave an untruthful answer to a question as to whether he had bet on the horse he had driven in the race. Following his plea of guilty to the charges he was disqualified for a period of one year on the charge of betting on a rival horse and on the charge of failing to drive his horse out disqualified for a further two months, to be served consecutively with the one year disqualification. The RIU appealed against the penalty imposed on Mr Bull on the ground the penalties were inadequate but its appeal was dismissed by an Appeals Tribunal in a Decision delivered on 4 November 2013. Mr Hart’s reliance on this case centered on the point that the conduct of Mr Bull in relation to the first two charges in fact mirrored the conduct of Mr Walker on the R. 801(1)(m) charge yet the respective penalties imposed were markedly and manifestly different. Mr Lange in response pointed out that Mr Bull had not been charged with the same kind of Serious Racing Offence as Mr Walker and that the Bull case could be distinguished on that basis. However he conceded that on the facts of the case Mr Bull “could have and should have” been charged under the Harness Racing Rules with the same kind of Serious Racing Offence as Mr Walker was charged with under R. 801(1)(m) of the Rules of Thoroughbred Racing. The Bull case caused us some anxiety because of the substantial difference in penalties for what was, in effect, similar offending but in the end, because of Mr Lange’s concession we concluded that had Mr Bull been charged with the correct Serious Racing Offence the penalty imposed on him would in all likelihood have been substantially greater than that actually imposed and the case could properly be distinguished on that basis.

5.6 In the end having given the respective submissions of the parties consideration we concluded that had the Judicial Committee been provided with the additional material submitted to us on this appeal some further allowance would have been made for Mr Walker’s prior record and for the various matters referred to in the references tendered, not least the fact that disqualification has and will seriously impact on his ability to earn an income over a lengthy period. In that regard however we note that under R. 1015 Mr Walker will have the ability after serving out 12 months of his disqualification to apply to an Appeals Tribunal for cancellation of the remainder of his period of disqualification. While we would not presume to judge in advance the result of any such application we would think it unlikely given the nature of the offending by Mr Walker in this case that in the absence of exceptional circumstances there could be any justification for reducing the total period of disqualification below at least four years. In the result, for the reasons adverted to, we think some reduction in the total penalty imposed on Mr Walker by the Judicial Committee is warranted and we accordingly reduce the period of disqualification imposed on him in respect of the charge brought under R. 801(1)(m) from seven years to five and a half years. The disqualification imposed by the Judicial Committee on the charge brought under R. 707(1) remains unaffected but is to be served concurrently with the disqualification imposed on the R. 801(1)(m) charge as amended by this Decision. The Orders for costs made by the Judicial Committee also remain unaffected. In the circumstances there will be no Order for costs in favour of or against any party on this appeal.

5.7 In the result:

(a) the penalty of seven years disqualification on the charge brought against Mr Walker under R. 801(1)(m) of the Rules and found proved by the Judicial Committee is quashed and in lieu thereof a period of disqualification for five and a half years is imposed effective from 19 September 2014.

(b) the penalty of one year’s suspension on the charge brought against Mr Walker under R. 707(1) of the Rules remains unaffected and is to be served concurrently with the disqualification imposed under paragraph (a) hereof.

(c) the Orders for costs made by the Judicial Committee remain unaffected.

(d) there will be no order for costs on this appeal.

Dated at Wellington this 10th day of December 2014

____________________________________
Sir Bruce Robertson KNZM (Chairman)
Signed: pursuant to Rule 1007(4)

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