Appeal GC Small V HRNZ – decision 29 January 2010

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startdate: 01/01/2001

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hearing_title: Appeal GC Small V HRNZ - decision 29 January 2010

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BEFORE THE APPEALS TRIBUNAL
AT CHRISTCHURCH

BETWEEN GEOFFREY CLEMMENT SMALL
Appellant

AND HARNESS RACING NEW ZEALAND (N R ESCOTT)
Respondent

Appeals Committee: The Hon Sir John Hansen KNZM (Chairman)
                                      Professor Geoffrey Hall (Member)

Appearances: P B McMenamin for Appellant
                          C J Lange for Respondent

Date of Hearing: 13 January 2010

Date of Decision: 29 January 2010

DECISION OF APPEALS COMMITTEE

Introduction 

[1] On 16 October 2009 the appellant was charged with two breaches of Rule 1001(1)(v)(i) and (ii) of the New Zealand Rules of Harness Racing, namely:
   (a) that on 16 October 2009 Mr Small did an act, namely scratch the horse All Tiger (trained by him) from Race 9, the Christian Cullen Making Wishes Come True Handicap Pace, detrimental to the interests of harness racing; and,
   (b) on 16 October 2009 he did utter insulting and abusive words with reference to a Stipendiary Steward and official, veterinary surgeon Mr Corin Murfitt. 

[

BEFORE THE APPEALS TRIBUNAL
AT CHRISTCHURCH

BETWEEN GEOFFREY CLEMMENT SMALL
Appellant

AND HARNESS RACING NEW ZEALAND (N R ESCOTT)
Respondent

Appeals Committee: The Hon Sir John Hansen KNZM (Chairman)
                                      Professor Geoffrey Hall (Member)

Appearances: P B McMenamin for Appellant
                          C J Lange for Respondent

Date of Hearing: 13 January 2010

Date of Decision: 29 January 2010

DECISION OF APPEALS COMMITTEE

Introduction 

[1] On 16 October 2009 the appellant was charged with two breaches of Rule 1001(1)(v)(i) and (ii) of the New Zealand Rules of Harness Racing, namely:
   (a) that on 16 October 2009 Mr Small did an act, namely scratch the horse All Tiger (trained by him) from Race 9, the Christian Cullen Making Wishes Come True Handicap Pace, detrimental to the interests of harness racing; and,
   (b) on 16 October 2009 he did utter insulting and abusive words with reference to a Stipendiary Steward and official, veterinary surgeon Mr Corin Murfitt. 

[2] It is now common ground that the words alleged to be used were directed at the veterinary surgeon, and not the Stipendiary Steward.

[3] On 2 November 2009 the Judicial Committee found both charges proved, although in respect of the second charge, as noted, they found the insulting or abusive words referred to the official race day veterinary surgeon.

[4] Mr Small appealed.  He also instituted judicial review proceedings.  Although the grounds of appeal were all-encompassing, the way events unfolded a number of grounds were overtaken.  Essentially, for pragmatic and sensible reasons, Mr Lange, on behalf of Harness Racing, accepted that the matter should proceed as a de novo hearing.  Accordingly, Harness Racing called witnesses who were cross-examined by Mr McMenamin.  Mr Small elected to give evidence and was cross-examined by Mr Lange.  Mr Small did not elect to call any supporting evidence.

Background

[5] The events we are concerned with arose during the New Zealand Metropolitan Trotting Club’s Make A Wish Race Night on Friday October 16, 2009 at Addington Raceway.  It is to be noted that Mr Small was not present, and his interests were represented by Messrs Hilliard and Whittaker.  It is apparent that although they were acting as Mr Small’s representatives on raceday, they had not been appointed as such in strict compliance with the Rules of Harness Racing.  But nothing hinges on this fact.

[6] A horse trained by Mr Small, Changeover, was entered in race 9, a handicap pace.  It is unnecessary to go into the details, but suffice to say the horse was ultimately viewed by the veterinary surgeon, Mr Murfitt, who formed the view that due to injury (a wound) the horse must be scratched.  It appears that the horse had got down in the float and rubbed up the wound on the way to the course.  Those persons representing Mr Small at Addington on the night in question informed him of this, and within a short time he spoke to the Chief Stipendiary Steward, Mr Escott.  The essential factual dispute in this matter arises from that telephone conversation.

[7] It appears that Changeover had suffered an injury and had been allowed to run with this injury a week earlier at Alexandra Park.  Mr Small assumed, apparently incorrectly, that the horse was in a similar condition to when he raced at Auckland, and that the veterinary surgeon was being unreasonable.  In what was clearly a heated exchange, at least from Mr Small’s side, he attempted to get Mr Escott to have the situation changed.  It is Mr Escott’s evidence that in the course of the telephone conversation Mr Small referred to Mr Murfitt as “a fucking old cunt”.  Mr Escott also states that at the end of the conversation, when Mr Small stated, “I may as well scratch All Tiger” or “I am scratching All Tiger”, Mr Escott told Mr Small he could not do so and that he would need to contact the Club Secretary.  We note that All Tiger was another horse trained by Mr Small and it was similarly entered in Race 9.

[8] Mr Small, while accepting that the conversation was heated and that he may have used the word “fuck” or a derivative thereof, denies referring to the veterinary surgeon as “a fucking old cunt”.  He also denies that he heard Mr Escott say that he could not scratch All Tiger from Race 9 and would need to contact the Club Secretary.

[9] In the course of that conversation Mr Small also sought to change the driver in order that the driver he considered most able, Mr David Butcher, who was to drive Changeover, would drive All Tiger.  Mr Escott refused that and explained that it was far too close to the race to make such a change as it could well impact upon betting.  In other words, it had the effect of impacting on patrons attending the meeting and the off-course betting.

[10] Next, Mr Small called the CEO of Harness Racing, Mr Rennell, and required of him to sort the situation out.  Mr Rennell explained, quite properly, that he could not do so.  As a consequence of these various conversations, Mr Small ultimately contacted Mr Hilliard at the raceway and told him to take All Tiger from the course.

Factual dispute

[11] We observed the witnesses give evidence.  The essential dispute is between Mr Escott and Mr Small.  We have no hesitation in accepting that Mr Escott’s version of events is correct and that Mr Small did call the veterinary surgeon “a fucking old cunt” on at least two occasions.  We also accept the evidence that his language included the word “fuck”, or derivatives thereof, throughout.  We reject Mr Small’s evidence that he did not use these words and that he was careful because of difficulties he had encountered in the past (see for example the decision of the Judicial Committee at Auckland dated 18 December 2008).  We found Mr Small in giving evidence was disingenuous, he was evasive and we do not accept his evidence.  We accept the evidence of Mr Escott.

[12] We are also quite satisfied that despite Mr Small’s denial, he clearly heard Mr Escott tell him that if he wished to scratch All Tiger, he would need to approach the Club Secretary.

[13] What is obvious to us in this case is that Mr Small was incensed by the decision of the veterinary surgeon.  As a consequence of that, and the refusal of Mr Escott to allow a change of driver, in a fit of pique and anger, and without reference to the horse’s connections, he withdrew All Tiger from Race 9.  To use the term “scratched”, strictly, would suggest he formally took some steps.  We do not accept he did.  Quite simply, he instructed Mr Hilliard to remove the animal from the racecourse and not to allow it to start.  So All Tiger did not run as a consequence of anger and pique on the part of Mr Small.  There were obvious consequences for the Club and punters from what occurred.

The first charge

[14] The relevant rule reads:
 1001 (1) Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:-
 …
 (v)  either by himself or in conjunction with any person:
 (i) does or permits or suffers to be done any act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of harness racing

[15] Mr McMenamin argued that even if we accepted, as we do, the evidence adduced from the respondent, the charge was not made out.  He equated the actions of Mr Small as no different from any other form of late scratching.

[16] Further, he argued that the term “or detrimental” in the Rules must effectively be read up so that it aligns with the two terms that appear immediately before that: “fraudulent” and “corrupt”.  He referred to a number of other rules set out in the Rules of Harness Racing which are specifically declared to be serious racing offences.  He pointed to the fact that Part X, in which this rule falls, deals with serious racing offences, and made specific reference to Rules 411(5), 505(2), 831(2), 915(2), 924 and 1004AB(6).  Although not put perhaps this strongly, essentially what Mr McMenamin was arguing was that unless the rule itself deemed the breach thereof to be a serious racing offence, any other rule without that qualification could not amount to a serious racing offence.  He specifically pointed to the fact that Rule 834 (dealing with scratchings, and in particular late scratchings) was not by the rules deemed to be a serious racing offence.

[17] We do not agree.  If Mr McMenamin was correct, then only breaches of rules so qualified could fall to be serious racing offences.  We also do not agree that the term “detrimental” should be read up to equate with fraudulent or corrupt.  To do so would offend the plain meaning of the term.  If Mr McMenamin was correct, one would have expected the drafters of the rules to say “Breaches of the following rules, and no others, would amount to a serious racing offence”, or something similar.

[18] Similar predecessor rules were considered by the Court of Appeal in the New Zealand Trotting Conference v Ryan [1991] NZLR 143. 

[19] The term “deems” was considered in that case, and at 149 Richardson J stated:
In its context "deem" must I think be given its ordinary meaning of consider or decide, and it is implicit that the named body or person must act rationally and reasonably in reaching that conclusion. Thus an act is a corrupt practice within the third limb of (p) only if the particular body or person reasonably considers it to be detrimental to the interests of trotting.

[20] Further, at 153, Casey J stated:

In its context, the word "deem" means no more than "thinks" or "considers", and there is of necessity the implicit qualification that those entrusted with the task of reaching a conclusion about the nature of the act charged must do so rationally and in the interests of trotting.

[21] That case was concerned with a corrupt act, but further (at 149) Richardson usefully said:
But, not surprisingly given the impossibility of identifying in advance every situation which might give rise to conduct adversely affecting trotting, the framers of the rules provided a general safety net to catch conduct regarded as offending but not specifically caught by any of the particular provisions. In order to offend that conduct must be properly characterised as fraudulent or corrupt or detrimental to the interests of trotting. And those who make that decision are not neophytes: they are themselves steeped in trotting. In that regard the approach under the rules may be compared with the approach taken in the disciplinary provisions governing various professions of applying the general test of "professional misconduct" or "conduct unbecoming" to the proved but uncategorised acts of the person concerned.

[22] We see this case as far removed from a late scratching.  Changeover was scratched because the official veterinarian appointed for the meeting considered the horse had such an injury that it was not proper for the horse to race.  Mr Small disagreed, but not surprisingly the Stipendiary Steward accepted, as one would expect him to, the professional opinion of the veterinary surgeon.  Mr Small then requested a change of driver, which, although irrelevant for present purposes, was in our view properly refused given the lateness of the request. 

[23] In a fit of anger and pique, Mr Small made a deliberate decision, without consulting the connections of All Tiger, not to allow that horse to race in Race 9.  When Mr Small spoke to Mr Rennell he appeared to be threatening to scratch All Tiger.  To do so, he needed to notify Mr Escott in writing or by communication to the Club Secretary, so it may well be that the horse was not formally scratched by Mr Small, given our finding that Mr Small heard Mr Escott’s refusal to accept the scratching and referring him to the Club Secretary.  If he had not heard Mr Escott’s response, in our view the conversation he had with Mr Rennell does not make sense.  At that stage he was thinking of scratching and appeared to be threatening to do so.  He did not take the necessary formal steps to scratch All Tiger, simply instructing his representative at the track, Mr Hilliard, not to present the horse.  This is tantamount to his scratching the horse, and Mr Small’s actions were such that they would inevitably cause the greatest inconvenience to all concerned.  In particular, this meant that the betting public, officials and others were unaware that the horse was not starting until the official scratching two minutes before race start time. This had significant consequences for all those investing on the race.  We consider such petulant actions and the consequences of it to be detrimental to harness racing and to be a serious racing offence.

[24] Accordingly, we find the first charge proved.

The second charge

[25] The second charge is governed by Rule 1001(1)(v)(ii):
 1001 (1) Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:-
 …
 (v)  either by himself or in conjunction with any person:
 (ii) at any time writes or causes to be written, publishes or causes to be published, or utters or causes to be uttered, any insulting or abusive words with reference to a Judicial Committee, Appeals Tribunal, HRNZ, the Chairman, the Vice-Chairman, the Executive, the Stewards or Committee of a Club or any member or official of any such Body or any Stipendiary Steward or Racecourse Inspector

[26] We have no doubt the words “fucking old cunt” are insulting and abusive.  The question is whether or not the official club veterinary surgeon fits within the specific persons or bodies referred to in the rule.

[27] Mr McMenamin argued persuasively that the veterinary surgeon was not a person specified in the rule.  Quite clearly he was not a member of the Judicial Committee or the Appeals Tribunal, nor was he the Chairman or the Vice-Chairman, or part of the Executive of the Club.  He was not one of the Stewards.  He stated himself he did not sit on the Committee.  He described his arrangement, which was that he was contracted by the Club to carry out the work, and was paid for it on a monthly basis.  He is clearly not a Stipendiary Steward or a Racecourse Inspector.  The veterinary surgeon could not be said to be HRNZ, nor could he be described as a member or an official of any such body set out in the rule.  In particular, he could not be said to be an official of “the Stewards or Committee of the Club”.  There is no definition of “official” in the rules, although it is noted that the veterinary surgeon, in respect of his engagement in a professional capacity, does not fall within the definition of a “paid official” under the rules.  The veterinary surgeon might be said to be an official of the Club (and we reach no conclusion as to this), but in our view the rule does not encompass or apply to such a person.  By way of example, were we to interpret “any such Body” as referring to the Club then it would be a breach of the rule to utter any abusive words with reference to any member of the Club (in contrast to a member of the Committee of the Club).  We do not believe the intention was that the rule should have such a broad ambit.

[28] The issue then is whether the veterinary surgeon, Mr Murfitt, is an official of the Committee of the Club or is simply employed by the Club or is an independent contractor.  On the evidence placed before us, we are not in a position to determine this issue.  Mr Murfitt has said in evidence that he bills the Club monthly for his services.  He stated he could not recall signing a formal contract, but he agreed with Mr McMenamin’s statement that it was an accepted arrangement that he turn up at meetings.  He stated he believed it was the Chief Executive Officer of the Club that had asked him to come back about three or four years ago. 

[29] This issue as to Mr Murfitt’s status would not be of consequence were the charge to be one of misconduct under Rule 303(2).  That, of course, is not a serious racing offence.  We briefly contemplated the possibility of amending the charge, but in view of the fact that we believe the charge under Rule 1001(v)(i) to be the more serious, and as the penalty for any breach under Rule 303(2), were it to be proved, having regard to the totality principle, would be likely to have little impact on the penalty imposed for the breach of Rule 1001(v)(i), we have decided against adopting this course of action.

[30] Our decision that Mr Murfitt is not an official of the Committee of the Club for the purpose of the rule is fact specific.  We can envisage situations where the committee of a club may have passed resolutions creating various personnel as officials in a way that would bring them within the definition.  In this case there was nothing to suggest such a resolution, or anything similar, hence our decision.

[31] We consider there to be a lacuna in the rules in that it should be a serious racing offence to insult or abuse the official veterinary surgeon in attendance.  But we are unable to find a way, on the evidence before us, to place Mr Murfitt within Rule 1001(1)(v)(ii).  Accordingly, the appeal in relation to that charge is successful, and the charge is dismissed.

Penalty

[32] The relevant penalty rule is Rule 1001(2) which provides:
 (2)    Every person who commits a serious racing offence shall be liable to the following penalties:
 (a)   a fine not exceeding $25,000; and/or
 (b)   suspension from holding or obtaining a licence, for any specific period or for life; and/or
 (c)   disqualification for a specific period or for life.

[33] It is clear that there is no comparable factual case to the one that we are concerned with.  Both counsel, particularly Mr McMenamin, had done extensive research and no such case was referred to us. 

[34] Mr Lange referred us to the decision of the Supreme Court of Australia in Harper v Racing Penalties Appeal Tribunal of WA (1995) 12 WAR 337, where the Court stated:
If it is correct to think that the financial wellbeing of the industry depends significantly on the maintenance of betting turnover, the need to maintain integrity in horse racing, and to do so manifestly, is easily seen to be imperative and of paramount importance. It may well be anticipated that unless racing is perceived to be fair and honest, people may be discouraged from betting.

[35] We agree that the integrity of all those involved in harness racing is critical to the sport and indeed this consideration is reinforced by Rule 1114(2)(d) which requires a Judicial Committee, when imposing a penalty, to have regard to such matters as they consider appropriate, including the need to maintain integrity and public confidence in harness racing.

[36] We also note that Mr Small has a considerable history of non-compliance with many rules.  We accept, as Mr McMenamin submitted, that some are minor.  But in the case we referred to earlier, he was fined for telling the veterinary surgeon “Tell them to fuck off” when the vet had been directed by the Stipendiary Stewards to examine the horse.  The veterinary surgeon asked him “Are you sure that is what you want me to say?” and Mr Small replied “Tell them I don’t want you to touch the horse, there was nothing wrong with him.”

[37] As well, at that hearing, Mr Small was warned that future breaches would result in suspension or disqualification.  He himself recognises the situation he now finds himself in, because he stated to us that he would not have used the words complained of because of previous troubles he had had with harness racing authorities.

[38] In that regard, we have found against him and found he did say the words, although they formed the basis of a different charge, which we have found not to be proved.  What they do indicate, however, is that Mr Small is someone who finds it impossible to control his anger, which leads him to act in a petulant and unprofessional manner. 

[39] However, given this charge is brought under that section dealing with serious racing offences, we are satisfied that compared with fraudulence or corruption this offending is at the lower end and can be dealt with by way of a fine.  However, to mark the seriousness of the offending and Mr Small’s repeated breaches of the rules we impose a fine of $10,000, but make it clear to Mr Small that he is being given a last chance.  We are very conscious of the impact of disqualification upon those persons for whom Mr Small trains, and in future, before acting in anger, he should think of his obligations to those people.

[40] Counsel did not address costs.  We invite them to file written memoranda with the Executive Officer of the Judicial Control Authority within seven working days.

_______________________________        _________________________________
The Hon Sir John Hansen KNZM                     Professor Geoffrey Hall

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Rules: 1001.1.v.i, 1001.1.v.ii, 303.2, 1001.v.i, 1001.2, 1114.2.d

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