Appeal RIU v G Bull – Decision dated 4 November 2013

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decisiondate: 06/11/2013

hearing_title: Appeal RIU v G Bull - Decision dated 4 November 2013

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BEFORE THE APPEALS TRIBUNAL
OF THE JUDICIAL CONTROL
AUTHORITY

Under the Racing Act 2003 and the New Zealand Rules of
Harness Racing

BETWEEN THE RACING INTEGRITY UNIT (RIU)
APPELLANT

AND GAVIN BRUCE BULL of Rangiora, Licensed Advanced Amateur Driver
RESPONDENT

Appeals Tribunal: Murray McKechnie, Chairman - Nicki Moffatt, Tribunal Member
Present: Mr Chris Lange counsel for RIU, Mr Ross Neal, Co-Chief Stipendiary Steward, Mr Gavin Bull

DECISION OF APPEALS TRIBUNAL DATED THIS 4 DAY OF NOVEMBER 2013

1. NATURE OF APPEAL
1.1 The Appellant laid three (3) charges against Mr Bull following a race meeting of the Rangiora Harness Racing club held at Rangiora on the 7 April 2013. The three (3) charges were as follows:

(i) That on Sunday, 7 April 2013, as you the horseman of KELLYROX in Race 1, the Bishopdale & Bush Inn TABs Amateur Drivers Mobile Pace, at the meeting held by the Rangiora Harness Racing Club placed bets on horses that were entered and raced in the abovementioned race of which you were not driving [sic] – the particulars being that you placed a Treble and Trifecta bet on the said race which included horses of which you were not the driver, thereby committing a breach of Rule 505 (1). (Information No.A1556).

(ii) That on Sunday, 7 April 2013, after placing several bets on Race 1, The Bishopdale & Bush Inn TABs Amateur Drivers Mobile Pace, you gave a false and misleading statement to Stipendiary Stewards when being interviewed regarding a post-race matter – the particulars being that during this interview when asked by Stipendiary Stewards if you had placed a bet on the abovementioned race on your horse KELLYROX you wilfully responded “No” on both occasions thereby committing a breach of Rule 101 (1) (k). (Information No.A1557); and

(iii) That on Sunday, 7 April 2013 at the Rangiora Harness Racing Club’s meeting you as the horseman of KELLYROX in Race 1, The Bishopdale & Bush Inn TABs Amateur Drivers Mobile Pace, failed to permit the said horse to be run on its merits – the particulars being that between the 200 and 40 metres you intentionally failed to drive KELLYROX out when there was no impediment for you not to do so and as a consequence committed a breach of Rule 868 (1). (Information No.A1558).

1.2 A hearing took place at Addington Raceway on the 23 May this year before a Non-Raceday Judicial Committee. At the hearing Mr Bull pleaded guilty to each of the charges. The Committee issued a reserved decision dated the 5 June 2013.

1.3 Mr Bull is the holder of an advanced amateur horseman’s licence issued by Harness Racing New Zealand. The Committee in its decision ordered Mr Bull to be disqualified for a period of one (1) year on the breach of Rule 505(1) (betting on a rival horse) and for a period of six (6) months for the breach of Rule 1001(1)(k) (supplying false or misleading information) and ordered that such periods be served concurrently. On the charge under Rule 868(1)(horse not running on its merits), Mr Bull was disqualified for a period of two (2) months, that disqualification to be consecutive with the concurrent period of one (1) year on the other two (2) charges. It follows that the total period of disqualification imposed upon Mr Bull was one year and two months. In addition he was ordered to pay hearing costs to the JCA of $350.00. No order for costs was made in favour of the RIU.

1.4 The RIU have appealed against the penalties imposed upon Mr Bull by Notice of Appeal dated the 14 June 2013. It is said that the penalties imposed were inadequate. By written advice sent to the Registrar of the JCA Mr Bull at some date in September this year (his document is undated) indicated that he wished to appeal the severity of the penalties imposed. That document, in as much as it might constitute a Notice of Appeal, is hopelessly out of time and no appeal by Mr Bull can lawfully be considered.

1.5 While Mr Bull admitted the charges at the hearing before the Judicial Committee it is noted in paragraph 46 of the decision of the Committee there was some attempt to resile from the admission in relation to the driving charge. As to the degree of remorse demonstrated by Mr Bull and his acceptance or otherwise of blame more will be said later.

2. THE COURSE OF THIS APPEAL HEARING
2.1 A telephone conference was convened on the 1 August this year. Mr Neal appeared on behalf of the RIU and Mr Bull on his own behalf. In the course of the discussion Mr Bull told the Tribunal that he could not afford to engage legal counsel. It was agreed that the appeal could proceed upon the filing of written submissions by both parties and that the costs, expense and inconvenience of convening a hearing could thus be avoided. A series of directions were then made as to the filing of submissions.

2.2 By memorandum dated 12 August this year Mr Lange, counsel for the RIU, made submissions in relation to the level of penalty and provided the Tribunal with a number of authorities. All of those were from Australia. The Tribunal then arranged a second telephone conference and this took place on the 9 September. The RIU were requested to provide reference to cases decided under the New Zealand Rules of Harness Racing where penalties for serious misconduct had been imposed. A copy of that material was to be lodged with the Registrar of the JCA and then made available to Mr Bull. Sometime after that conference, on a date which is not clear, Mr Bull filed a brief written submission which, as noted earlier, was headed up “Notice of Appeal”. That written material made reference to a number of considerations. These were, amongst other things, to the small sums bet and the modest stake money at issue in the race. Mr Bull drew attention to penalties imposed upon trainers who were, some years ago, milk -shaking their horses. Further Mr Bull referred to a number of recent cases which had involved not driving a horse on its merits and/or betting in circumstances which were unlawful. Three (3) of those cases involved prominent public trainer/drivers. During the course of one of the telephone conferences Mr Bull made reference to the recent high profile case in Australia involving the prominent thoroughbred racing jockey DO. That case had to do only with betting and is of no assistance in determining this appeal.

2.3 A further submission was received from Mr Lange dated the 13 September in response to the second minute from the Tribunal. That had attached to it a number of recent decisions, HRNZ v D October 2009, RIU v CWW 14 October 2011 and HRNZ v C August 2005.

2.4 By a third memorandum dated the 25 September 2013 Mr Lange drew attention to a further series of decisions and helpfully provided copies. These included HRNZ v McG, K & B August 2004, HRNZ v P August 2005, HRNZ v McG August 2006, HRNZ v S 9 November 2009, HRNZ v B March 2010, HRNZ v C March 2011, RIU v W 11 October 2011, RIU v MPJ March 2013, RIU v deF 7 March 2013, RIU v R 3 May 2000 & RIU v R May 2013.

2.5 The Tribunal has carefully considered all of the material filed on behalf of the Appellant and has also given careful consideration to the brief but succinct submission of Mr Bull.

3. DISCUSSION
3.1 There was an extended hearing before the Judicial Committee. This Tribunal has had reference to the transcript of that hearing. Exhibits were produced at that hearing including a printout of an extended interview between Mr Bull and the Stipendiary Stewards Messrs Wallis and Ydgren. These have been considered by the Tribunal.

3.2 The decision under appeal is detailed and carefully thought out. Clearly the Committee was unimpressed by Mr Bull’s false advice in his statement to the Stewards. Further – reference above – the Committee who saw and heard Mr Bull considered that he had little remorse for any of his offending and “that he did not totally accept blame for any of the breaches”. This Tribunal (both members were present on each occasion) having heard Mr Bull in the course of the two telephone conferences referred to above can readily appreciate the views arrived at by the Judicial Committee to which reference has just been made. Mr Bull’s attitude before the Tribunal at the telephone conferences was much the same as that which he exhibited before the Judicial Committee.

3.3 There were other issues which influenced the Judicial Committee. These included, but were not limited to, Mr Bull’s attempt to suggest that he had placed the bet on behalf of his wife and his delay in acknowledging responsibility. As to the failure to drive the horse KELLYROX on its merits there seems to have been no dispute. The evidence as recorded in the transcript and the interview suggests that the actions of Mr Bull were so unsubtle as to draw immediate interest from the Stipendiary Stewards.

3.4 The Appellant placed considerable emphasis upon the penalty guide and the recommended levels of financial penalty and/or disqualification set out there. Relevantly these are as follows:
(i) Rule 501(1) is, according to the penalty guide, a $5,000 fine and/or disqualification for 2 years;
(ii) Rule 868(1), the starting point is a $2,000 fine and/or disqualification for 3 months; and
(iii) Rule 101 (1)(k), the starting point is disqualification for 6 months.

As is acknowledged by counsel for the RIU the penalty guide is simply that: “a guide”. In the opinion of the Tribunal it is more relevant to look at contemporary cases where Judicial Committees and/or Appeals Tribunals have considered cases which bear comparison to the present. With the assistance of the detailed submissions from the RIU that has now been done. In the Tribunal’s view it is clear that the penalties imposed in this instance are not significantly out of line with those which have been imposed in circumstances which bear some comparison. It must be emphasised that there are few cases which bear direct comparison with the present in as much as the conduct of Mr Bull involved illegal betting, failing to drive out his horse so as to try and ensure that his bets were successful and then wilfully misleading raceday officials. Cumulatively this made his misconduct particularly serious. We are satisfied that the Judicial Committee in its carefully reasoned decision was conscious of the level of seriousness Mr Bull’s offending. We are further satisfied that the Judicial Committee gave proper recognition and weight to the various aggravating factors and the limited mitigating circumstances that were present.

3.5 The Judicial Committee had the advantage of seeing and hearing Mr Bull’s explanation. That was not convincing. This Tribunal for its part having studied all the relevant material and having heard Mr Bull on a number of occasions has concluded that his actions arose more from stupidity and foolishness than they did from any carefully conceived plan to breach the relevant rules. His actions were clumsy and readily identified.

3.6 Sentencing authorities have a wide discretion in order to take into account numerous considerations or factors which may be relevant. This was noted by Richardson J in the Court of Appeal in Fisheries Inspector v Turner [1978] 2 NZLR 233, 237 as follows:

“ It is only by allowing the sentencing authorities a wide discretion that they are enable to take account of the innumerable factors affecting the nature of the offence, the circumstances of the offence, and the circumstances of the offender, all of which should ordinarily be weighed in determining the appropriate sentence in the particular case”.

We are satisfied that the Judicial Committee did properly identify all the relevant factors and the circumstances of the offending. Further the Tribunal is satisfied that looking at the penalties imposed proper regard has been had to what is sometimes referred to as the totality of the penalty.

3.7 The Tribunal is not persuaded that the total period of disqualification of one year and two months was significantly inadequate. It is not the function of an Appeals Tribunal to make restricted adjustments or refinements to penalties imposed by experienced Non-Raceday Committees. The Appeals Tribunal will only alter the penalty imposed, in whichever direction, if it is persuaded that the decision at first instance was plainly wrong. That is not the position here.

3.8 For the reasons explained and notwithstanding the conscientious manner in which Mr Lange advanced the case for the RIU we are not prepared to disturb the decision of the Judicial Committee. The appeal is dismissed.

3.9 The question of costs must be considered. Ordinarily an unsuccessful Appellant will be required to make a meaningful contribution towards the costs of hearing the appeal. Here, for reasons explained above, the costs and expense associated with assembling all the parties in one place at one time was avoided. Mr Bull for his part has incurred limited expense having chosen not to engage counsel. The appeal was not without merit. In those circumstances we are not prepared to make any costs award in favour of Mr Bull. The RIU must however make some contribution towards the costs of the JCA. We have fixed those costs at $400.
 

Dated this 4 day of November 2013
____________________________________________
Murray McKechnie
Chairman (Signed pursuant to Rule 1007(5)
 

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