Appeal – N McGrath

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startdate: 01/01/2001

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hearing_title: Appeal - N McGrath

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Nigel McGrath, ?the applicant", was found guilty of breaches of Rule 1001 [1][q], of the Rules of Harness Racing and the Judicial Committee imposed a period of three years disqualification by way of penalty.

JUDICIAL CONTROL AUTHORITY APPEALS TRIBUNAL

                           IN THE MATTER of Rule 1213(1)

                          of the New Zealand Rules of Harness Racing

                         AND

                         IN THE MATTER of an application by Nigel McGRATH

                        for cancellation of the balance of his term of disqualification

___________________________________________________________

Nigel McGrath, ?the applicant", was found guilty of breaches of Rule 1001 [1][q], of the Rules of Harness Racing and the Judicial Committee imposed a period of three years disqualification by way of penalty.

Mr. McGrath lodged an appeal against the penalty and when the Appeal Tribunal sat to hear the appeal the respective Counsel for the appellant and HRNZ presented a joint memorandum seeking a reduction from three years disqualification to eighteen months. That was ordered by the Tribunal to take effect from the 11^th July 2005.

The applicant, having served over twelve months of the period of disqualification imposed, has now made application for cancellation of the remainder of the period of disqualification, upon the grounds;

" The Applicant has already served two thirds of the disqualification imposed.

The Respondent, who has been served with the application, does not oppose it and it is agreed that the matter can be dealt with on the papers."

Although, as suggested in the application, HRNZ is not opposed, Counsel for HRNZ has stated in submissions that the Respondent "neither supports nor opposes the application but rather adopts a neutral position."

Counsel for HRNZ goes on to recommend that in dealing with this matter, the Tribunal should provide some guidance for future applications that may be made.

Rule 1213 [1] of the New Zealand Rules of Harness Racing empowers the Appeal Tribunal to grant applications made under this Rule provide only that such application is brought not earlier than twelve months from the date the disqualification was imposed.

As stated above, the disqualification took effect from the 11^th July 2005, and this requirement has been satisfied.

Nevertheless, the Tribunal believes it must, in reaching a decision, consider whether there are any specific matters, or circumstances that would warrant a waiver of the remainder of the period of disqualification.

In his submissions in support of the application, Counsel for the applicant refers to various matters that were in fact present at the time of the original imposition of the disqualification and ought properly to have been considered at that time.

The fact that this was the first prosecution brought in respect of the substance Propantheline Bromide and its metabolites.

The impact on Mr McGrath of substantial publicity surrounding the "Blue Magic" scandal, although he was not involved with that substance.

The fact that the Prohibited Substance Regulations under which the prosecution was laid became law in February 2004, and the offences occurred in April of that year.

Nothing from the above is novel or of any support to the current application.

We do however believe that there are extenuating circumstances of which this Tribunal can take note and which do carry considerable weight sufficient to warrant this Tribunal granting the application.

As stated in Counsel's submissions, Mr. McGrath, although not associated with the "Blue Magic" substance suffered considerable abuse and degradation at the hands of the media which had tarred him with the "Blue Magic" brush.

This Tribunal notes however that subsequent to McGrath's sentencing, when Mr Purdon pleaded guilty under prosecutions brought in respect to that substance the Judicial Control Authority, on the 22^nd August 2005 imposed a period of disqualification of four months only, accompanied with a substantial fine.

There appears little doubt that the offences committed by Mr. McGrath, if not considerably less in severity to those of Mr. Purdon were certainly not greater. Yet there is a substantial discrepancy in the term of disqualification imposed in each instance.

The applicant herein has already served a period of disqualification in excess of three times that imposed on Mr. Purdon.

We are satisfied however, that the 18 months disqualification,, was an appropriate response for Mr. McGrath's offending and we wish to emphasise that removal of disqualification under Rule 1213 is not to be granted automatically.

Mr McGrath has complied with his penalty and has not come to the notice of the authorities since its imposition. We also take into account his contribution to harness racing and his obvious desire to return to his chosen profession.

For these reasons we accept the application by Mr. McGrath.

There is an order in terms of Rule 1213[1] of the Rules of Harness Racing cancelling the unexpired portion of the disqualification imposed on Nigel McGrath and which took effect from the 11^th July 2005.

There is no order as to costs and costs shall lie where they fall.

Dated this 8th day of August 2006

Judge J.Bisphan

Chairman.

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hearing_type: Old Hearing

Rules: 1001.1.q, 1213.1

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