Appeal RIU – GA Lawrence – Decision dated 1 May 2015

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hearing_title: Appeal RIU - GA Lawrence - Decision dated 1 May 2015

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BEFORE THE APPEALS TRIBUNAL

IN THE MATTER of the Rules of the New Zealand Greyhound Racing Association

BETWEEN RACING INTEGRITY UNIT

Appellant

AND GORDON ALBERT LAWRENCE

Respondent

Appeals Tribunal: Bruce Squire QC, Chairman - Mr Bryan Scott, Member

Date of Hearing: 7 April 2015

DECISION OF APPEALS TRIBUNAL

1. Introduction

1.1 On 26 February 2015, before a Judicial Committee constituted under the Rules of the New Zealand Greyhound Racing Association (“the Rules”) Mr Lawrence admitted three charges brought against him under Rules 87.1 and 87.3 of the Rules. The charges alleged that on 24 December 2014 and on two occasions on 2 January 2015 at race meetings conducted by the Waikato Greyhound Racing Club at Cambridge Mr Lawrence as trainer of the dogs concerned presented and raced greyhounds which were found to have administered to them the Category 1 Prohibited Substance Morphine. Following the hearing and submissions made to it by both the Racing Integrity Unit and Mr Lawrence in relation to penalty, the Judicial Committee in a written Decision delivered on 2 March 2015 imposed fines on Mr Lawrence totalling $4,000. The three affected greyhounds were disqualified and stakes paid to their connections were ordered to be repaid to the New Zealand Greyhound Racing Association and to be paid out in accordance with the amended race results. Mr Lawrence was also ordered to pay costs of $200 to the Judicial Control Authority.

1.2 On 11 March 2015 the Racing Integrity Unit lodged an Appeal against the Decision of the Judicial Committee. The Appeal by the Racing Integrity Unit, as the prosecuting body, sought to have the findings of the Judicial Committee which found the charges against Mr Lawrence proved following his admission of them, and the penalty imposed on him, quashed or set aside. In order to understand this unusual sequence of events it is necessary to outline briefly the submissions made by Mr Lawrence to the Judicial Committee as to penalty and events which then followed.

2. The Hearing Before the Judicial Committee and Subsequent Events

2.1 At the hearing before the Judicial Committee on 26 February 2015, after having admitted the three charges brought against him, Mr Lawrence explained to the Committee that he was unsure why the three affected greyhounds had tested positive to morphine. He said he had not administered morphine to the greyhounds himself and thought one possibility may have been that the animals had been fed milk from powder purchased at a local bulk store where the milk powder was located in close proximity to poppy seeds. The ingestion of poppy seeds is known to produce positive results for morphine in greyhounds which have eaten bread containing the seeds. Alternatively Mr Lawrence suggested that kibble fed to the dogs may have been responsible although he had no clear evidence of that. He told the Judicial Committee other local trainers who used the same kibble had greyhounds which returned positive test results for morphine and that an analysis of the kibble was being undertaken. However the result of that analysis was not available at the time of the hearing before the Judicial Committee.

2.2 In fixing penalty the Judicial Committee accepted there was no clear evidence which established how the morphine was introduced into the greyhounds’ systems. It accepted that Mr Lawrence had not deliberately fed the dogs anything containing morphine with a view to obtaining an advantage in their performance and commented that Mr Lawrence’s integrity as a trainer of greyhounds was not challenged by the Racing Integrity Unit. However noting the charges involved what it referred to as “strict liability” and of the need to maintain integrity and public confidence in Greyhound Racing the Judicial Committee concluded that in line with its finding that Mr Lawrence’s culpability in the matter was at a low level, the breaches of the Rules could be adequately dealt with by the imposition of a monetary penalty and mandatory disqualification of the greyhounds which followed, rather than anything more severe. The Judicial Committee accordingly imposed the fine and disqualifications outlined earlier.

2.3 Following the laying of the charges against Mr Lawrence the Racing Integrity Unit was notified of further positive results for morphine in greyhounds trained by other Waikato based trainers. As a result of inquiries undertaken by the Racing Integrity Unit following that notification it was discovered the trainers concerned, and Mr Lawrence, had all purchased kibble supplied from Australia from the Waikato Greyhound Racing Club and marketed by a distributor located in the Waikato area. An analysis of the kibble provided from Australia was carried out by the Official Racing Analyst who confirmed that it tested positive for morphine. Similar tests carried out on the same material obtained from the Waikato based supplier produced the same results on testing. Against that background the Racing Integrity Unit considered it manifestly unjust that Mr Lawrence should be held responsible for contamination of the feed to the greyhounds which had occurred in Australia and which he had no way of knowing had taken place. Essentially because Mr Lawrence’s admitted breaches of R. 87.1 occurred without any culpable conduct on his part the Racing Integrity Unit then took the unusual step of appealing against the findings and the penalty imposed by the Judicial Committee in its Decision of 2 March 2015.

3. Discussion

3.1 Following the lodging of the Appeal, on 27 March 2015 this Tribunal issued a Minute to the parties in which it signalled that one of the issues it wanted to address at the hearing of the Appeal on 7 April 2015 was whether the grounds of Appeal advanced by the Racing Integrity Unit, if accepted, provided proper grounds for the Appeals Tribunal to set aside the findings of the Judicial Committee. Recognising the implications of the fact that a breach of R. 87.1 is what the Racing Integrity Unit referred to as an “offence of strict liability” the Racing Integrity Unit withdrew its Appeal against the findings of the Judicial Committee and the Appeal proceeded on 7 April 2015 as an Appeal against penalty only. The description of a breach of R. 87.1 as an offence of “strict liability” is conceptually inaccurate. The breach is more accurately described as an offence for which absence of fault or culpable conduct on the part of the person charged is no defence. In that regard it is in the nature of an offence of absolute liability rather than one of strict liability. The reason for that can be found, without the need for repetition here, in the Decision of the Judicial Committee in the case of HRNZ v L J Justice delivered on 31 October 2011. In that Decision, under the head of “The Categorisation of a Breach of R. 1004” of the New Zealand Rules of Harness Racing the Committee referred to a Judgment of Panckhurst J in McInerney v Templeton and Ors (CP 187/98; 10.11.99) which dealt with what was in effect the predecessor to the present Rules 87.1 and 87.3, read in combination with appropriate adjustments to terminology. In that case the Judge noted that a reasonable precautions defence previously incorporated into the Rules had been specifically removed by a 1995 Amendment to the Rules leading him to conclude that the rule no longer imported an absence of fault or due diligence defence. In that respect the Judge described the breach of what is now R. 87.1 as a “status offence” and based on the rule as it now stands we see no reason to differ from the view expressed by the Judge. The Racing Integrity Unit in withdrawing the Appeal against the Judicial Committee’s findings in this case was right to recognise, as it implicitly did, that an alleged breach of R. 87.1 could not be met with a no fault defence even if it was wrong in characterising it as a “strict liability” offence.

3.2 On the Appeal against penalty the Racing Integrity Unit submitted for the same reasons outlined above and particularly the absence of culpable conduct on Mr Lawrence’s part that the fine imposed on him should be quashed but that the disqualifications of the greyhounds concerned and the Orders for repayment of the winning stakes made by the Judicial Committee should remain unaffected. While we understand the reasons why the Racing Integrity Unit has adopted that position in relation to the penalty imposed on Mr Lawrence in this case we think it is based on a misunderstanding of the nature of the offence involved in a breach of R. 87.1 and the purpose for which provision is made for having such offences within the Rules which govern Greyhound Racing.

3.3 The starting point is recognition that a breach of R. 87.1 is what Panckhurst J in the McInerney case referred to earlier as a “status offence”. That is proof of the offence simply requires evidence that the person charged, whether it be the owner, trainer or person in charge of a greyhound nominated to compete in a race, produced the greyhound for the race and that at the time it was produced it was not free of a prohibited substance as defined in R. 3 of the Rules. Proof of the offence does not require proof of culpable conduct on the part of the person charged, nor, for the reasons recorded earlier, is the absence of culpable conduct a defence to the charge. Once the offence is proved, or admitted as the case may be, the person charged is liable to the penalties prescribed in R. 89.1. That is a fine not exceeding $10,000 for any one offence, and/or suspension, and/or disqualification and/or warning off. The Rules do not provide for any exemption from those penalties for persons found to have breached R. 87.1 but who have not been guilty of any culpable conduct associated with the breach. The reasons for that relate to the particular function R. 87.1 and similar Rules in the other racing codes have in preserving and maintaining integrity and public confidence in the racing industry.

3.4 In its Decision on Penalty and Costs in the case of HRNZ v L J Justice delivered on 16 December 2011 the Judicial Committee in that case dealt with this issue in relation to the penalties prescribed for breaches of R. 1004 of the New Zealand Rules of Harness Racing, which in that code is the equivalent of R. 87.1 of the New Zealand Greyhound Racing Association Rules. In its Decision in the Justice case the Judicial Committee explained the purpose of R. 1004 and the imposition of penalties for its breach in the following terms:

“4.1 There is always a natural reluctance to impose a penalty on someone who has not been proved to have been guilty of any culpable conduct. But the charge brought and proven against Mr Justice in this case, and the assessment of penalty for it, involves wider considerations. There can be no doubt that Rules prohibiting the racing of horses affected by Prohibited Substances, whether performance enhancing or not, are fundamental to the integrity of the racing industry. The reasons are obvious and have been repeatedly articulated, in different ways, in many cases, by different Judicial Committees and Appeal Tribunals. The force of the observations made and their current validity lose nothing by their repetition. It is in that context the significance of the penalties provided for breach of R. 1004(2) after the Rule had been amended to remove the all reasonable precautions defence available under the previous Rule, and sub-rule (4) included, becomes apparent. What is contemplated is that sufficiently condign penalties will be imposed for breaches of the Rule which will recognise, reinforce and give effect to the pivotal significance of the Rule in maintaining the integrity of Racing, whether or not culpable conduct is involved. Naturally where culpable conduct is involved, penalties imposed will normally be greater than in cases where such conduct is absent but we think it is wrong and contrary to the intent and purpose of the Rule to assume the absence of culpable conduct should attract no, or only a token penalty.

4.2 Nonetheless the absence of culpable conduct on the part of Mr Justice is a relevant consideration in fixing penalty and we have taken account of it accordingly.

4.4 ….. In that connection we think it useful to refer also to the Decision of the Australian Racing Appeals Tribunal in the case of Lisa Justice (8.5.07). Ms Justice had been found guilty of a breach of R. 190(1) of the Australian Harness Racing Rules and fined the sum of $5,000. Rule 190 is in terms, with some minor variations, effectively the same as R. 1004(1)(2) and (4) of the New Zealand Rules. In that case the urine sample taken from the horse trained by Ms Justice was found to contain the anti-inflammatory drug diclofenac. Ms Justice appealed against the finding of guilt and the penalty imposed. The Appeals Tribunal dismissed the Appeal against the finding of guilt but allowed the Appeal against penalty and reduced the fine to $2,500 noting that on the evidence it was not possible to say how the Prohibited Substance came to be within the horse’s system prior to the race. In fixing the penalty at that level the Tribunal took account of the fact Ms Justice had an outstanding record and that for some 20 years she had never been involved with any horse with a drug problem or which had returned a positive test. The Tribunal also noted the level of drug in the horse’s system was low. In referring to the issue of penalty generally the Tribunal said:

“As has been stated by the Racing Appeals Tribunal on a number of occasions, the rule which prohibits the presentation of a horse at a race meeting with a prohibited substance within its system is a rule designed to ensure as far as possible that there is a level playing field. The use of drugs is something that must be deterred. It is a matter of critical importance to the racing industry and integrity of the racing industry. The responsibility is on the trainer, and on the trainer alone, to present his or her horse free from a prohibited substance. The rule itself is of course one of strict liability and designed to preserve the integrity and public confidence in the racing industry. Principles of general deterrence and denunciation clearly apply when the horse is presented with a prohibited substance in its system. In the end, however, each case and each penalty must depend on its own individual circumstances.”

Apart from the observation the rule is one of strict liability, with which we disagree for the reasons set out in our Decision of 31 October 2011, we think the comments of the Appeals Tribunal with the emphasis on the need for deterrence and denunciation accurately encapsulate the rationale for the imposition of penalties for breaches of the rule, notwithstanding the absence of culpable conduct on the part of the trainer concerned.”

3.5 The views of the Judicial Committee in the Justice case, as set out in the preceding paragraph, are in our view no less applicable to the Greyhound Racing code and the assessment of penalties for breaches of R. 87.1 of the Rules of the New Zealand Greyhound Racing Association in those cases where no culpable conduct on the part of the person charged has been proved or admitted.

3.6 As indicated earlier the Racing Integrity Unit sought to have the fine imposed on Mr Lawrence by the Judicial Committee quashed because of the absence of any culpable conduct on his part associated with the breaches of R. 87.1 he admitted. For the reasons just outlined we do not accept that absence of culpable conduct on Mr Lawrence’s part justifies the quashing of the fine imposed in its entirety, but as previously acknowledged it is a factor to be taken account of when penalties for such breaches are fixed.

3.7 In fixing the penalty in this case the Judicial Committee reviewed the penalties imposed in a range of other cases submitted to it by the Racing Integrity Unit and noted that Mr Lawrence’s culpability was in what it referred to as the “low range”. After recording there was no evidence which established precisely how the morphine came to be found in the greyhounds’ systems and that Mr Lawrence’s integrity as a trainer had not been challenged by the Racing Integrity Unit in bringing the charges, the Judicial Committee noted the nature of the breaches admitted and the fact it needed to be “mindful” of the need to maintain integrity and public confidence in greyhound racing. It then went on to record that the penalty imposed on Mr Lawrence must be such as to leave no doubt as to the high responsibility placed on trainers to present greyhounds to race free of prohibited substances. The Committee then concluded that the admitted breaches of R. 87.1 in this case could, in its view, be dealt with by the imposition of a fine which it then fixed by reference to its review of the penalties imposed in the other cases submitted to it and its assessment of Mr Lawrence’s culpability as within the “low range”. Describing the case as one which involved “unique circumstances” the Committee considered that a single breach of R. 87.1 would have appropriately justified a fine of $3,000 but given there were three admitted breaches, applying a totality principle to achieve a proportionate result, a fine of $4,000, comprising a fine of $2,000 on one charge and $1,000 each on the other two charges, was sufficient to mark the “totality of Mr Lawrence’s culpability”.

3.8 The approach taken by the Judicial Committee in fixing the penalty imposed on Mr Lawrence was not criticised by the Racing Integrity Unit in its submissions nor, in our view, could it be. The process adopted by the Judicial Committee was appropriate and in accordance with principle. However by reason of the further information provided to us on the Appeal, which was not before the Judicial Committee when it fixed the penalty imposed on Mr Lawrence, and for which it cannot be criticised, we differ in one respect from the assessment of the Judicial Committee. As indicated earlier the starting point for the Judicial Committee in fixing penalty was its assessment of Mr Lawrence’s culpability as being within what it described as a “low range”. Later in its Decision it referred to Mr Lawrence’s “negligence” as being within the same range. In light of the further material put before us explaining how the greyhounds the subject of the charges, came to be found to have morphine in their systems when presented to race on the occasions referred to in the charges, we are inclined to think that the categorisation of Mr Lawrence’s culpability as negligence and within the “low range” rather overstates the position. Accepting the explanation for the breaches of R. 87.1 admitted by Mr Lawrence, as put before us, we doubt that Mr Lawrence has been guilty of negligence and that it is difficult to characterise his conduct associated with the breaches as culpable. Accordingly if a penalty is to be imposed on Mr Lawrence in those circumstances, and we think there must be, the penalty should be effectively for the purposes of the wider considerations referred to earlier; that is to give effect to the nature of the breaches admitted and to preserve and maintain integrity and public confidence in Greyhound Racing.

3.9 Approaching the issue of penalty in that way we agree with the Judicial Committee that the breaches of the rules can be adequately met with the imposition of a fine. Recognising the acceptance by the Judicial Committee that the case involved “unique circumstances”, with which we agree, we consider a total fine of $2,000 made up of a fine of $1,000 for one breach and fines of $500 on each of the other two breaches, is sufficient to give effect in this case to the need to maintain integrity and public confidence in greyhound racing. The Orders made by the Judicial Committee as to the disqualification of the greyhounds and repayment and redistribution of the stake winnings are unaffected by this Decision.

4. Costs

4.1 This Tribunal has a discretion as to the awarding of costs. Given the basis upon which the Racing Integrity Unit has pursued this Appeal, partially successfully, we do not think there is any proper basis on which to award costs for or against either of the parties. For the same reasons we do not think that Mr Lawrence should be required to pay or contribute to the costs of the Judicial Control Authority which are in a separate category, and should be met by the Racing Integrity Unit. The Racing Integrity Unit is accordingly ordered to pay costs to the Judicial Control Authority in the sum of $750.

5. Result

5.1 In the result for the reasons outlined:

(a) The Appeal against the fines imposed on Mr Lawrence by the Judicial Committee is allowed and the fines imposed by that Committee are quashed. In substitution therefor Mr Lawrence is fined the sum of $2,000, made up of a fine of $1,000 on one of the charges he admitted and $500 each on the other two charges he admitted.

(b) The Orders for disqualification of the greyhounds made by the Judicial Committee and for repayment and redistribution of the stake winnings remain unchanged.

(c) The Racing Integrity Unit is to pay costs in the sum of $750 to the Judicial Control Authority.

DATED this 1st day of May 2015

Bruce Squire QC                                   Bryan Scott 

Chairman                                             Member

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