Appeal PL McKenzie v RIU 27 September 2013 – Decision dated 14 October 2013

hearingid: d722234136af9307beaa21901c770127

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 18/11/2013

hearing_title: Appeal PL McKenzie v RIU 27 September 2013 - Decision dated 14 October 2013

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

Between : Peter McKenzie
Appellant
And : Racing Integrity Unit
Respondent
Date of Hearing: 27 September 2013
Before: Appeals Tribunal: Hon Sir John Hansen KNZM, Chair – Professor Geoffrey Hall
Appellant: Mr McKenzie in person.
Respondent: Mr M Colson representing the Racing Integrity Unit

Decision of the Appeals Tribunal Committee

[1] The Non Raceday Judicial Committee found a charge of misconduct brought against Mr McKenzie, the appellant, under R. 340 of the Rules of Racing proved. He was fined $400 plus JCA costs of $3180 and RIU costs of $2150. He appeals against both the finding and penalty.

[2] Unfortunately, the transcript of the hearing before the Non Raceday Judicial Committee has been misplaced and is unavailable to us. Accordingly, it has been necessary to deal with this matter by way of a full hearing, a course concurred in by Mr Colson. This, of course, requires us to set aside from our considerations the earlier decision. As a result, we heard evidence from the Stipendiary Steward, Mr Michael Zarb, and Mr McKenzie. We also heard submissions from Mr McKenzie and Mr Colson.

[3] The appellant is a trainer of many years’ experience based in the lower North Island. He has been a long-term supporter of the West Coast Racing Carnival which takes place at the beginning of each year. The events we are concerned with occurred on 3 January 2013 when he was travelling to Greymouth, and on 5 January 2013 at the Omoto Racecourse at Greymouth.

[4] While spelling the horses from the truck in Blenheim on 3 January 2013, the appellant received a call from the rider he had arranged to ride his horses at the meeting. Mr Doherty informed the appellant he would not be able to ride on 5 January. Although still an apprentice, it is accepted that Mr Doherty is an experienced rider. On receipt of this information, the appellant telephoned the NZTR Bureau in order to ascertain who might be available to replace Mr Doherty. Of those available, he considered Kylie Williams would be the most suitable. A call to her confirmed her availability. The appellant then called the Bureau again, and informed the person he spoke to that Ms Williams would be replacing Mr Doherty. He was asked if he had advised the Stipendiary Steward of this change. The appellant said he asked the NZTR Bureau to do that, as he wished to get on the road. As he was loading his horses, he received a call from the Bureau advising him that the Stipendiary Steward would not permit him to engage Ms Williams, and he was given the Stipendiary Steward’s number. He called the number and spoke with Mr Zarb, who at the time was driving home from a greyhound meeting in Christchurch. Mr Zarb had already been advised that Mr Doherty was not available to ride for Mr McKenzie, and that the appellant wanted to replace him with Ms Williams.

[5] While there is some dispute between the appellant and Mr Zarb as to the content of their telephone conversations, there is no real dispute from Mr McKenzie that he spoke the words that led to the charges he faced.

[6] The dispute between the appellant and Mr Zarb arose from a purported policy known as the “like for like” policy: ie, if an apprentice is unavailable, he/she should be replaced by an apprentice. Mr McKenzie denies all knowledge of such a policy. Mr Zarb’s position is that the policy applies in New Zealand and a number of other racing jurisdictions.

[7] As a consequence of this, during their telephone conversation Mr Zarb advised the appellant of the usual policy as he saw it. The appellant was adamant that he did not want to put an apprentice on his horses. Mr Zarb said that an apprentice could be replaced by a jockey if no suitable apprentice was available, but that he was driving home and if the appellant called back in 20 minutes; he would see who was available and would call Mr McKenzie back. However, the appellant was adamant that he wanted an immediate response. In the course of the first telephone conversation, the appellant stated “are you that incompetent, pull over and make a decision.” That call was then ended and the appellant called back within 30 seconds. In the course of the second conversation the following exchange took place:

Mr McKenzie Do you know what you are doing? Are you that arrogant that you think you can dictate who I put on my horses? Where did you come from? Do you have any experience?

Mr Zarb Mr McKenzie, I've been in the industry for 27 years. Everywhere I have worked there has been the same policy, apprentice for apprentice.

Mr McKenzie So you are stupid. Don’t you know the jockeys in your area? Pull over and give me a decision now.

Mr Zarb Mr McKenzie, I have just pulled into my driveway. I will see who’s available and give you a call in five minutes. Good bye.

That ended that conversation.

[8] On arriving home, Mr Zarb unpacked his computer, and while attempting to see what jockeys were available, the appellant called for the third time, approximately two minutes after the last call had ended. The following was the conversation:

Mr McKenzie: Your time’s up, make a decision.

Mr Zarb Mr McKenzie, I told you I will call you back in five minutes. Good bye.

[9] Mr Zarb, after viewing the available jockeys, called the appellant back approximately two minutes later. He then approved the replacing of Mr Doherty with Ms Williams.

[10] We note Mr Zarb’s transcript of these telephone conversations was prepared some three days later, on the evening of 6 January 2013. However, they were based on notes recorded in Mr Zarb’s notebook, made “slightly” after the four telephone calls he had with Mr McKenzie on 3 January.

[11] On 5 January the appellant was requested to attend the stewards’ room. The appellant described it as being summoned, but in our view nothing turns on that.

[12] Mr Zarb wished to speak to the appellant about what occurred in the telephone conversations. He was expecting the appellant to acknowledge he was out of line in the telephone calls on 3 January 2013, and that would have been the end of the matter. In Mr Zarb’s view, the appellant continued to be aggressive and abusive, and this was in front of two other Stipendiary Stewards who were in the room at the time.

[13] This conversation was recorded, and the transcript reads:

Mr Zarb: Mr McKenzie, I am Michael Zarb, we spoke on the phone the other day.

Mr McKenzie: Yes.

Mr Zarb: I wanted to speak to you in regards to your manner on the phone the other day.

Mr McKenzie: Yes, your ignorance is only exceeded by your arrogance.

Mr Zarb: Is that a fact?

Mr McKenzie: Yes.

Mr Zarb: I am going to tell you straight away that my… firstly I am going to tell you straight away that a warning is going to be issued against you.

Mr McKenzie: You can do that.

Mr Zarb: Yes I know I can do that.

Mr McKenzie: I have never met anybody as ignorant as you in all the years.

Mr Zarb: I am going to tell you now, let me speak and you can say whatever you like after that, OK? So just let me speak.

Mr McKenzie: I don’t care about anything you might say.

Mr Zarb: I have been in the industry for 27 years and my job demands some respect. Respect has got to be earned and I think I've done my time and I deserve some respect.

Mr McKenzie: In my time respect is…

Mr Zarb: Mr McKenzie let me finish. Now if you speak to me like that again, I guarantee you, I will be taking you straight to the JCA and we’ll take the matter from there.

Mr McKenzie: Do that, do it, let’s not waste time. Do that, do it now and you can expand your theory on how superior you are and how well-versed you are within the industry. I think you are a ridiculous and arrogant person.

Mr Zarb: OK, if you’d just wait outside, we will speak to you shortly.

Mr McKenzie: I have no desire to speak to you again.

Mr Zarb: No listen Mr McKenzie, it’s not a matter if you have a desire or not, it’s a matter if I do. Can you close the door now and wait outside please, wait outside and I'll discuss the matter…

Mr McKenzie: If you think you can dictate to me who can ride and who cannot ride my horse, you are in the wrong part of the industry. Right. If you couldn't take the time to actually answer my questions. You had to go home, which was going to take you half an hour. In fact it took you five minutes to get home. You are just a superset. You are an extreme example of a man with a white coat on. You’re probably better off out there picking up shit.

Mr Zarb: OK, you can just wait outside there, don’t go too far, we’ll need to speak to you again.

Mr McKenzie: No no, I haven't got time, I got a horse in the next race.

[14] Mr McKenzie then left the stewards room. He was asked to return, advised an information would be laid against him, and he was advised of the details of the information and asked whether he admitted or denied the charges. The appellant refused to admit, deny or sign the information.

Mr McKenzie: Do you want to tape this?

Mr Zarb: Yes, the tape is on now. So you are not going to sign the information.

Mr McKenzie: No, Mr Zarb, I am not.

Mr Zarb: Thank you very much.

Mr McKenzie: And I think you should learn to work in with people who live and work here. Your arrogant attitude is certainly not welcome and you would be much better off to go back where you came from.

Mr Zarb: Thank you very much. Don’t go before you call in and see us again, OK?

Mr McKenzie: I'm sorry I have horses to look after.

Mr Zarb: OK, but we will need to see you.

Mr McKenzie: I beg your pardon?

Mr Zarb: We will need to see you before you go.

Mr McKenzie: Who will need to see me?

Mr Zarb: The JCA will need to see you.

Mr McKenzie: They want to see me now?

Mr Zarb: The JCA will need to see you.

Mr McKenzie: Who’s the JCA?

Mr Zarb: The Judicial Committee.

Mr McKenzie: Well I've got horses to look after

Mr Zarb: OK, well don’t go before you see them.

Mr McKenzie: If you want to see me I'll be down at the stables.

Mr Zarb: Well you'll have to come back here.

Mr McKenzie: No I don’t.

Mr Zarb: OK, thank you.

At which point the transcript ends.

[15] Mr Zarb had prepared an information in the expectation it would be dealt with on the day, but the appellant sought and was granted an adjournment by the JCA, which led to a hearing before a Non Raceday Judicial Committee.

[16] The appellant challenged the timing around some of the phone calls, stressed that on 3 January he was trying to put horses on a float to commence a long journey to Greymouth, exacerbated by storms and road closures in the western part of the South Island. He was adamant that he had never heard of the “like for like” policy. In any event, he was also adamant that in the circumstances the words he acknowledged using did not amount to misconduct.

Decision

[17] We are satisfied that the matter of whether or not there is a “like for like” policy is almost totally irrelevant to the present hearing. It appears much of the hearing before the Non Raceday Judicial Committee was occupied by evidence relating to this policy, and to a lesser extent this occurred in front of us. That evidence was called by the appellant’s counsel and in no sense are we critical of the committee for hearing it. At the first hearing, the appellant called witnesses to support his view that no such policy existed. He was given the opportunity to call such witnesses again in front of us. When it became apparent that that would be difficult for the witnesses, we advised the appellant that he could do so by way of video link, but it was a matter for him to arrange such video link with the JCA secretariat. Notwithstanding that opportunity, it transpired that Mr McKenzie did not call those witnesses. We do not consider they would have added anything to this matter. However, given Mr Colson’s concession that the so called “like for like” policy does not exist in written form, and given the issues raised by the RIU in the context of these two hearings, we would urge the relevant authority to consider putting it in writing as soon as possible.

[18] We noted earlier that by and large the appellant accepted using the words as alleged by Mr Zarb. The appellant contested the timing surrounding the 3 January telephone calls, the arrival of Mr Zarb at home, and the opening of his computer. However, where there is any conflict, we prefer the evidence of Mr Zarb. He took a virtually contemporaneous note which was later transcribed from that note. The matters of 5 January cannot be in dispute as they are recorded and we heard them played.

[19] The charge faced by the appellant was that “Trainer P McKenzie misconducted himself, firstly on Thursday 3 January on the phone and then again in the stewards’ room today”. The appellant maintains that even if such words were used, they were not misconduct in the context of R. 340 and the circumstances in which he found himself.

[20] Misconduct is not defined in the rules, but the Shorter Oxford English Dictionary (5th ed, 2002) finds misconduct as “improper or wrong behaviour”.

[21] In New Zealand Trotting Conference v Ryan [1990] 1 NZLR 143, the Court of Appeal said at 153:

It is, of course, manifestly impossible to legislate in advance for every kind of corrupt practice that might arise. As with other professional and sporting bodies, the definition and maintenance of proper standards of conduct is appropriately left to those elected leaders and officials whose experience and standing qualifies them to act as arbiters of appropriate conduct, and to judge whether any act or omission falls short of it.

Further, in Carter, a decision of the Judicial Committee dated 14 February 2006:

All of the above leads the Committee to conclude that the use of this language in this way could only be considered in these circumstances as improper and contrary to professional standards of behaviour, using Mr McKenzie's definition and improper behaviour in terms of Mr Ryan's definition.

We agree, and dopt those statements. In this case the appellant ws speaking to a Stipendary Steward acting in the course of his duties. His manner was peremptory, demanding that Mr Zarb pull over and give him a definitive answer immediately. It was consistent with bullying and hectoring. This was in the context of the appellant seeking the Stipendiary Steward’s assistance to replace a jockey on two horses. He described Mr Zarb as incompetent, arrogant and stupid.

On 5 January the behaviour was much the same in the stewards’ room, compounded by the fact that it was in front of two other Stipendiary Stewards on a race day. This was when the appellant had the opportunity to consider the wisdom of the language and the manner it was used in the telephone conversations on 3 January. Almost immediately, he described Mr Zarb as ignorant, as well as arrogant, ridiculous and a man with a white coat on who would be better off out on the racecourse picking up shit. In context, this is not the behaviour one would expect from an experienced licensed trainer such as the appellant. It was unnecessary, hectoring and abusive. Looking at the matter overall in context, the passages outlined above satisfy us that the charge of misconduct against the appellant has been proved. We accept, however, that it is at the lower end of misconduct, but that of course is only relevant as to penalty.

Penalty

In the circumstances, we confirm the earlier fine imposed of $400.
In relation to costs, as with the Non Raceday Judicial Committee, we are guided by B v RIU (21 December 2011) and the Judicial Committee in NZTR v McA (17 March 2011).

On the face of R. 920(3), which creates the jurisdiction to make orders for costs, it is unqualified, with no presumption either way. Clearly, however, it is required to be exercised on a principled basis.

In McA, the Judicial Committee said:

On the face of it there seems no compelling reason in principle why those whose conduct has led to the institution of disciplinary procedures should not, within limits, bear the expense of those procedures if they are ultimately found to have breached the Rules as charged. Obviously given the nature and intended width of the discretion conferred by R. 920(3) that factor will not necessarily be the only consideration to be brought to account in deciding to award costs or in fixing the quantum in any case, but there seems no reason why that should not be the starting point for the exercise of the discretion in any given instance.

We concur.

We note in this case that the appellant sought an adjournment of the information on the day it was served on him, as he did not want it dealt with on that race day or the ensuing raceday. Prior to the Committee hearing, there were repeated requests by Mr McKenzie’s counsel for disclosure, as can be seen from the minute number 3 of the Judicial Committee. When it became clear that the defence was simply the actions did not constitute misconduct, the RIU suggested the matter be dealt with either by way of a guilty plea with a modest order of costs, or secondly the matter be dealt with on the papers, given that the words actually said by the appellant were largely agreed. The original hearing occupied over half a day. After the hearing, there was an application by the appellant to recall the decision which required further research and a response. In those circumstances, we do not consider that the costs to the JCA and the RIU ordered by the Non Raceday Judicial Committee were manifestly excessive on their face. However, as noted above, because of the loss of the transcript we had to rehear the entire matter. In those circumstances we direct the appellant to file a memorandum of costs within 7 days. The respondent in reply 7 days thereafter.

Sir John Hansen                     Professor Geoffrey Hall
 

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: