Appeal S Clark v RIU – Reserved Decision dated 21 March 2016 – Chair, Mr M McKechnie

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hearing_title: Appeal S Clark v RIU - Reserved Decision dated 21 March 2016 - Chair, Mr M McKechnie

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER Greyhound Racing New Zealand

Rules of Racing

STEPHEN CLARK

APPELLANT

RACING INTEGRITY UNIT (RIU)

RESPONDENT

Judicial Committee: Mr Murray McKechnie, Chairman and Mr Adrian Dooley

Mr Stephen Clark, Appellant

Mr Ross Neal, Chief Co-Stipendiary Steward on behalf of the Racing Integrity Unit

Ms Karen Attwood, Registrar

Ms Elizabeth Whelan and Mr Barry Lichter, Media

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

Hearing Auckland Friday 11 March 2016

RESERVED DECISION DATED THIS 21st DAY OF MARCH 2016

1. THESE PROCEEDINGS THUS FAR

1.1 Mr Stephen Clark is a licenced greyhound trainer of some forty five (45) years’ experience. He is a member of the Board/Committee of the Auckland Greyhound Racing Club. He operates a large kennel with upwards of thirty (30) racing dogs. He told the Committee that twelve (12) of these were currently fit to race. He has a specialist training facility at Maramarua.

1.2 On Sunday the 21st February 2016 Mr Clark raced a number of dogs at Manukau. One of those dogs JAY LOW was the winner of twelve (12) races. This dog was injured on that day and had to be put down. A number of other dogs suffered injuries during the course of racing on Sunday 21st February this year. A race meeting was scheduled at Manukau the very next day Monday the 22nd February.

1.3 Mr Clark had eleven (11) dogs entered for racing on the Monday. Following the events of Sunday, about which more will be said later, he decided that he should withdraw those dogs. The fields for Monday’s racing had already been published. Following the advice of the proposed withdrawal of the eleven (11) dogs set down to race on Monday in circumstances we shall explain more fully the Chair of the Stipendiary Stewards on duty Miss Philippa Kinsey advised that the eleven (11) dogs had incurred a twenty eight (28) day suspension. The submissions for the RIU prepared by Mr Neal explain that Ms Kinsey purported to be acting under Rule 64.15 of the Greyhound Racing New Zealand Rules of Racing.

1.4 Mr Clark lodged an appeal with the Judicial Control Authority (JCA) challenging the suspension of his eleven (11) dogs and sought a stay of proceedings. The Committee requested a response from the RIU. The stay application was opposed.

1.5 The Committee gave careful consideration to the application for a stay and by a decision dated 24th February this year a stay was granted pending the hearing of this appeal. That hearing took place in Auckland on Friday the 11th March 2016. The decision of the Committee upon the stay application should be read alongside and as part of this decision.

2. RELEVENT EVENTS AND CIRCUMSTANCES

2.1 On Sunday the 21st February this year Mr Clark had two (2) dogs engaged at Manukau. Reference has already been made to JAY LOW. The second dog was YEBOAH. Mr Clark told the Committee that he was not on track that day. The evidence from Mr Clark established that YEBOAH is owned by a Mr Tony Potts. This dog was to take part in the last race. Following discussion between Messrs Clark and Potts the latter spoke to the Chief Stipendiary Steward on duty that day Mr Steven Mulcay. It is common ground that Mr Potts had concerns about animal welfare as a consequence of the state of the track and the injuries that had already occurred. Some 10 minutes before the race was due to take place the request to withdraw YEBOAH was granted. It is the RIU position that this request was granted to pursuant to Rule 64.7.

2.2 Rule 64 is headed up Withdrawal After Box Entry. The rule is extensive. It is in no fewer than seventeen (17) parts. Prima facie parts of the rule are inconsistent. More will be said of that later. Rule 64.7 is as follows:

A greyhound which has been included in the box draw for a meeting or after qualifying for a semi-final or final at a Totalisator race and is not presented to race, shall be suspended for 28 days unless permission has been granted by the Stewards for the greyhound to be withdrawn or the reason for the non-attendance is submitted in writing to the Stewards of the day who may then reconsider the penalty. An owner or trainer of a greyhound may seek a review, by a Judicial Committee, of any decision under this Rule in accordance with Rule 91.20.

2.3 No sanction or penalty was imposed as a result of the very late withdrawal of YEBOAH from the last race at Manukau on Sunday 21st February. It is the RIU position that YEBOAH was a well-performed dog and would have been a major chance in the race. That race was heat for the Railway Sprint. In the RIU submissions it is said that it would be difficult to contend that the withdrawal would have advantaged the connections. It seems clear from the RIU submissions that it is accepted that YEBOAH was withdrawn for valid animal welfare reasons. Further and importantly it is contended for the RIU that the discretion exercised by the Stewards in relation to YEBOAH was appropriate.

2.4 Mr Clark gave an account of his actions following the withdrawing of YEBOAH on Sunday 21st February. Mr Clark had conversations with the Steward Mr Mike Austin and with Ms Kinsey. Regrettably neither Mr Austin nor Ms Kinsey was at the appeal hearing on the 11th March. Some of what Mr Clark told the Committee had occurred was accepted by Mr Neal. However as to what passed between Mr Clark and Ms Kinsey there was not agreement. Ms Kinsey ought to have been present at the hearing as it was her actions in imposing a suspension of the eleven (11) dogs which was at the centre of the appeal. In those circumstances the Committee would have wished to direct questions and inquiries of her; the more so when, as will be later explained, there appears to have been a significant difference in the approach taken in relation to the withdrawal of YEBOAH on the Sunday and the approach taken in relation to Mr Clark’s eleven (11) dogs which were to race on the Monday.

2.5 The Committee found Mr Clark to be a credible witness. His motivation for withdrawing the dogs was based entirely upon his view of animal welfare. He was not motivated by personal benefit or gain. Mr Clark put before the Committee a detailed email circulated by Greyhound Racing New Zealand in relation to track preparation. This was dated 8th March 2016 and made clear that there had been significant problems with the track at Manukau on the 21st February this year. The advice from Greyhound Racing New Zealand recorded, inter alia, that there had been discussion with the track maintenance manager for Greyhound Racing Victoria and that a number of recommendations had been made which included:

    I. Ensuring the track surface is worked daily irrespective of racing or not;

    II. The track should never be allowed to sit and dry out, even for a day;

    III. And the final recommendation is that the tracks are to be constantly watered.

2.6 It was Mr Clark’s evidence that at 6.31p.m. on the Sunday night he rang the RIU Steward Mr Mike Austin to tell him that he proposed to scratch the eleven (11) dogs that were due to race the next day on account of the conditions on the track. Mr Clark recounted that Mr Austin said to him “I will pass that on”. Mr Austin apparently rang Mr Neal. The phone was not answered and he left a message. The next morning Mr Neal rang Mr Austin and they spoke about the advice which Mr Austin had received the previous evening.

2.7 It was Mr Clark’s further evidence that when he arrived at the track on the Monday morning he went to the Steward’s office. Ms Kinsey was the Chief Steward. Mr Mulcay who had been presiding on the Sunday was not present on the Monday. Ms Kinsey had not been present on the Sunday. That in itself is a curious and regrettable circumstance. Race meetings that run on consecutive days on the same track should, unless there be a good reason otherwise, have the same Stewards in each occasion. In any event it was Mr Clark’s account that he had with him some racing papers and that he wanted to put these forward in support that his position that his eleven (11) dogs should be withdrawn. He said that Ms Kinsey then told him that his dogs had been suspended for twenty eight (28) days. He said that Ms Kinsey did not tell him under which rule that suspension had been imposed. He recounted that Ms Kinsey then went on to tell him that Mr Mike Godber the CEO of the Racing Integrity Unit was present on the track and that he (Mr Godber) had told her (Ms Kinsey) that all Mr Clark’s dogs would be getting twenty eight (28) days and then Mr Clark’s evidence – verbatim – “would not be accorded the same privilege as YEBOAH as the track was 24 hours later.” Mr Clark told the Committee that he disputed this with Ms Kinsey and tried to explain that he was scratching his dogs for animal welfare considerations and as a result of the track conditions as he did not believe that the base of the track could be rectified in the 24 hours following what had happened the previous day.

2.8 It can be seen that there is a conflict in the accounts that the Committee has been given. Mr Clark is clear that he was not told which part of Rule 64 had been invoked. The RIU submission is that Ms Kinsey informed Mr Clark that the Stewards were acting under Rule 64.15. The regrettable absence of Ms Kinsey has already been noted. It is appropriate to now set out Mr Clark’s account of what then occurred. This is contained in paragraphs 11 to 14 in Mr Clark’s written material which he read to the Committee as his evidence in chief.

It is as follows:

11. At this stage I decided under rule64.7 that I was scratching under that I had the opportunity to appeal so decided not to argue as it would achieve nothing as the RIU had already made up their mind so I would take it to the JCA I said to Miss Kinsey could she please ring Ross Neal and confirm the 28 days was correct as I was going to do an interview on trackside television. Miss Kinsey never came back to me or gave me my racing papers back with the scratching rule. Nor was it recorded on the racing day report.

12. When I picked up my papers a few days later is when I realised the dogs had been scratched under rule 64.15 not 64.7. I straight away notified the JCA that I believe the RIU had used the wrong rule.

13. Rule 64.15 is there for injury or illness and when the dogs are not presented for this reason. Rule 64.7 allows for no presentation but with a “valid reason”. If no valid reason then it allows for a 28 day stand down too.

14. As Yeboah was scratched in the same manner and for exactly the same reasons as my 11 dogs, I believe they should have been afforded the same privilege. In my experience over 45 years, there is no guarantee the track will or could be changed in a 24 hour period to bring it back up to safe conditions. How did Mr Godber know the track had changed and was now safe? At no stage had it been inspected by his staff at the point of injuries and also there was no inspection after the races by either stipe. If this was a horse track, the point of injury would be inspected immediately by RIU, track staff and track committee.

2.9 Rule 64.7 has been set out in paragraph 2.2 above. It is the RIU position that the Stewards acted pursuant to Rule 64.15. That is as follows:

64.15 Any greyhound which is not produced for inspection by the officiating Veterinarian or Steward or an acceptable Veterinarian   certificate is not produced within 48 hours of the start of a Totalisator Meeting or in respect of a Non Totalisator Meeting a declaration stating the condition of the Greyhound is not produced within 48 hours of the start of the Meeting shall incur a 28 day suspension from the date of withdrawal.

Also relevant is Rule 64.3. That is as follows:

If a Greyhound is withdrawn without valid reason after the Box Draw, or after qualifying for a Semi Final or Final of a Totalisator Race, the Owner or Trainer of the Greyhound shall be guilty of an Offence.

Rule 64.3 would, at first appearance, appear to cover all situations that may eventuate post the box draw. Plainly Rule 64.3 is intended to ensure that a greyhound will only be withdrawn for “a valid reason…”. In conventionally drafted legislation, regulations or rules an all- encompassing provision of this nature would be the final or concluding part of the regulation or relevant rule. It is curious that this provision is placed early in the detailed provisions of Rule 64 and before Rules 64.7 and 64.15 which both appear to address certain particular circumstances which may arise.

3. MR CLARK’S POSITION

3.1 In answering questions from the Committee it became clear that Mr Clark was particularly concerned that the position he had taken in relation to his eleven (11) dogs that were to race on the Monday was inconsistent with the position that had been taken in relation to YEBOAH on the Sunday and that had a consistent position been adopted the withdrawal of his dogs may have been permitted. Much of Mr Clark’s concern centres around the process by which the request in respect of YEBOAH had been dealt with on the Sunday and how his approach to the eleven (11) dogs which were to race on the Monday had been dealt with. In essence it came down to this:

• Very soon after the scratching of YEBOAH Mr Clark rang the Stipendiary Steward Mr Austin. It was Mr Clark’s evidence that he indicated that he wanted to withdraw his dogs. Mr Clark was clear that it was not an ultimatum but rather advice of what he proposed: see paragraph 2.5 above,
• Mr Clark was told by Mr Austin “I will pass that on”. Mr Clark heard nothing further.
• When Mr Clark arrived at Manukau on the Monday he sought to raise the issue with Ms Kinsey. It is Mr Clark’s account that Ms Kinsey told him, without any opportunity for discussion, that his dogs had been given twenty eight (28) days suspension. Reference was made earlier in this decision to Mr Clark’s account of what Ms Kinsey told him of her discussion with Mr Godber: see paragraph 2.6 above.

3.2 For the reasons just listed above it is Mr Clark’s concern that he did not get any reasonable opportunity to put forward his position and further that his advice to Mr Austin was not appropriately acted upon. Mr Clark says that as his dogs were not presented to race Rule 64.7 is the appropriate rule. The RIU contends that the appropriate rule is 64.15. It is not possible to reconcile these two rules. Both provide that where a dog is not presented to race either in the case of Rule 64.7 in the absence of permission being granted or, in the case of Rule 64.15 in the absence of an acceptable veterinarian certificate then a twenty eight (28) day suspension will be incurred from the date of the withdrawal. The only material difference in the two provisions is that under Rule 64.7 the suspension of twenty eight (28) days will not take place if permission has been granted by the Stewards for the dog to be withdrawn or the reason for non-attendance is submitted in writing to the Stewards on the day who may then consider the penalty. That latter exception would seem to envisage unforeseen circumstances like motor vehicle accident or mechanical breakdown preventing the dog from being in attendance.

4. THE POSITION OF THE RIU

4.1 As already recorded it is the RIU position that the appropriate rule was 64.15 and that Ms Kinsey informed Mr Clark that this was the rule under which the suspension had taken place.

4.2 It is the RIU submission that Rule 64.15 is mandatory and that if a dog is not produced for inspection in the absence of an acceptable veterinarian certificate no circumstances exist where the twenty eight (28) day suspension can be waived, challenged or appealed.

4.3 The RIU submission states that it well accepted in the industry that to scratch without a veterinary certificate will lead to a twenty eight (28) day suspension. That is plainly not always the case. No veterinary inspection had taken place in the case of the dog YEBOAH. As earlier explained this dog was withdrawn only 10 minutes before the race was to take place following application by its owner Mr Potts. The Committee considers that the RIU submission in this regard is valid only in as much as there are known to the Committee to be occasions when a dog is not presented in circumstances where there has been no prior advice and there is no veterinary certificate. The circumstances here are markedly different.

4.4 With reference to Rule 64.3 it was Mr Clark’s position that he had acted without fault: that his actions were taken for valid animal welfare reasons. Mr Neal was questioned closely about this. He explained to the Committee, in answer to questions which were necessarily theoretical in character that if Mr Clark’s approach to Mr Austin had been treated as a request to scratch the eleven (11) dogs on the Sunday this would have been considered by the Stewards and refused. The reason for the refusal, Mr Neal explained, was that the Stewards believed that between the Sunday and the Monday the difficulties arising from the track conditions had been put right. Further Mr Neal explained the dogs that were to race on the Monday were not as fast as the dogs racing on the Sunday and he contended that in those circumstances they were less likely to be injured. Needless to say when asked about this Mr Clark did not agree either that the condition of the track would be made acceptable on the Monday or that the dogs were slower and therefore necessarily less likely to be hurt.

5. ANALYSIS

5.1 In the Committee’s view this appeal is essentially about the process by which Mr Clark sought to withdraw his dogs from the racing at Manukau on Monday the 22nd February. The Committee accepts that Mr Clark, who has a long experience in greyhound racing and training and whose integrity is not in question, was genuinely motivated by issues of animal welfare in pursuing the course that he did. That was precisely the same motive that had led to the request to withdraw YEBOAH on the Sunday.

5.2 The first step in the process was for Mr Clark to contact Mr Austin. He indicated to Mr Austin the course of action which he was proposing to take. This is just as Mr Potts had done to the Chief Steward Mr Mulcay in the case of YEBOAH on the Sunday. Mr Austin did not act upon Mr Clark’s advice. There was some conversation between Mr Austin and Mr Neal on the Monday. The Committee was not told what took place in that conversation. As to what happened at Manukau upon Mr Clark’s arrival we have only his account of that. He says he was given no opportunity to explain his position. The Committee accepts that evidence. There is no evidence from Ms Kinsey as to what took place.

5.3 Mr Clark’s notice of appeal is dated the 23rd February. On the 24th February the Executive Officer of the JCA sent an email addressed to Mr Clark, Mr Neal, Mr Godber and Ms Kinsey passing a message from the Committee Chairman. That was as follows:

RE: STEPHEN CLARK v RIU

Mr Clark has appealed the decision by which 11 of his greyhounds were stood down for 28 days on 21 February 2016. The stand down period applies from 21 February until 19 March. The RIU opposes Mr Clark’s application for a stay. A number of issues arise which will require detailed consideration. A decision will issue before the close of business this Friday 25 February. In those circumstances a stay is granted, It will have immediate effect. There will need to be a prompt hearing of the appeal. A telephone conference will be arranged with the parties early next week on a date and at a time to be notified.

Murray McKechnie
Chairman

DATED this 24 day February 2016

Message ends

Kind regards

Catherine Hutton

Executive Officer

Judicial Control Authority for Racing, Wellington

5.4 The decision of the Committee on the application for stay issued on the 24th February. That makes plain that there was an issue as to which part of Rule 64 is appropriate and whether in the circumstances the withdrawal of the dogs was excusable or permissible. In that situation the absence of the Chief Steward who made the decision that is under appeal is inexcusable. Mr Neal advised the Committee that he had not seen Mr Clark’s written material until the day before the hearing on the 11th March and did not until receipt of that material appreciate that Ms Kinsey’s account would be challenged. The importance of Ms Kinsey’s role ought to have been appreciated from the earlier advice given by the Committee. In any event as she had a central role in the relevant events and ought to have been present even if Mr Clark’s written material made available on the 10th March had not called her role into question.

5.5 For reasons which will be explained in succeeding Mr Austin had an important role in the events and he too ought to have been in attendance at the appeal hearing.

5.6 When Mr Austin was contacted at 6.31p.m. on Sunday the 21st February he was told that Mr Clark was proposing to withdraw the dogs which were to race the following day. As earlier related Mr Austin sought without success to contact Mr Neal that evening. The advice from Mr Clark to Mr Austin ought properly to have been treated as a request to withdraw the dogs. Further on the Monday morning Mr Clark having already given advice to Mr Austin the evening before ought to have been given the opportunity to obtain permission to withdraw the eleven (11) dogs. The evidence which the Committee has heard indicates that no such opportunity was afforded: indeed the account given by Mr Clark indicates that Mr Godber and/or the Stewards had already reached a view without Mr Clark having any opportunity to put his position. For the Stewards to have acted in the manner just explained was inconsistent with the approach taken the day before with YEBOAH. In that case the permission to scratch was granted after hearing the position advanced by Mr Potts the owner and only a few minutes before the race was to take place.

5.7 The Committee can find no previous rulings by Non-Raceday Judicial Committees or Appeals Tribunals in relation to Rule 64.

5.8 Attention is drawn to the 7th Schedule to the Rules which sets out the practice and procedures of Judicial Committees and Appeals Tribunals. In paragraph 5.1 it is said that the Judicial Committee and an Appeals Tribunal must exercise and perform their duties, powers and functions in a manner consistent with natural justice. In this Committee’s view that requirement to act in accordance with the rules of natural justice applies to the application of the Rules of Greyhound Racing and to the conduct of Stewards. The concept of natural justice has many components. Two of those which are prominent are first, the need to act consistently and secondly, the need to give persons whose conduct is being determined under the rules an adequate opportunity to explain their position before there is a determination made. Neither of those components has been followed here. In this Committee’s view what happened in relation to Mr Clark was inconsistent with what happened in relation to YEBOAH the day before. Further, as has already been explained, Mr Clark’s evidence which the Committee accepts is that he was given no opportunity on the Monday to explain his position. His evidence establishes that there had already been a determination before he had a chance to say anything in support of what he proposed.

5.9 It is possible that had Mr Clark’s advice in relation to his eleven (11) dogs been treated as an application under Rule 64.7, as it should have been, the Stewards may not have granted permission for the dogs to be withdrawn. That was the position Mr Neal indicated would have been taken. In the view of the Committee the position is theoretical. It is sufficient to dispose of this appeal to record that the Committee finds that the process followed was not appropriate for the reasons explained. What may have happened if the correct process had been followed is not in any way determinative of the appeal. Mr Clark’s advice in relation to his eleven (11) dogs ought to have been, at the very least, the subject of some discussion with the Stewards.

6. CONCLUSION

6.1 The Committee rules that the process followed in relation to the eleven (11) dogs that Mr Clark had entered for the racing at Manukau on the 21st February was not appropriate or in accordance with a proper application of the rules. The suspension of those dogs was therefore invalid and is quashed.

6.2 If either party believes that an award of costs is appropriate submissions in that regard, not to exceed three pages, should be lodged with the Executive Officer of the JCA not later than 4.00p.m. on Tuesday 29th March 2016.

DATED this 21st day of March 2016

Murray McKechnie

Chairman

(Signed pursuant to Rule 91.14)

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BEFORE A JUDICIAL COMMITTEE OF THE
JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003

IN THE MATTER Greyhound Racing New Zealand
Rules of Racing

STEPHEN CLARK
APPELLANT

RACING INTEGRITY UNIT
RESPONDENT

Judicial Committee: Mr Murray McKechnie, Chairman and Mr Adrian Dooley
 

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE ON APPLICATION FOR STAY

DATED THIS 24 DAY OF FEBRUARY 2016

1. INTRODUCTION
1.1 Mr Stephen Clark is a licenced greyhound trainer.

1.2 On Sunday 21 February 2016 Mr Clark raced a number of dogs at Manukau. One of these was JAY LOW a winner of twelve (12) races. The dog was injured and had to be put down. A number of other dogs suffered injury during the course of racing on Sunday 21 February.

1.3 Races were scheduled at Manukau the following day Monday 22 February this year. Mr Clark had no fewer than eleven (11) dogs entered for the racing on the Monday. Following the events of Sunday he withdrew those dogs. The fields for Monday’s racing had already been published.

1.4 The rules provide that if a dog is withdrawn following the publication of fields it shall be stood down for twenty eight (28) days. Following the withdrawal of the dogs for the racing on Monday a suspension was placed upon those dogs for twenty eight (28) days to run from the 21 February to 19 March 2016.

1.5 There are races scheduled at Cambridge on 25 February and at Manukau on Sunday 28 February.

2. MR CLARK’S POSITION
2.1 Mr Clark has lodged with the Judicial Control Authority (JCA) a notice of appeal against the twenty eight (28) day stand down or suspension of his eleven (11) dogs. His stated grounds are as follows:

The eleven (11) greyhounds were stood down for twenty eight (28) days each. The greyhounds were scratched because of animal welfare. The track the previous day was, in my opinion, unsafe. JAY LOW on the day had to be put down with a shattered hock (my dog). Six (6) dogs were stood down four (4) with major injuries. I scratched the eleven (11) dogs as I felt there was no way the track could be repaired in time (24 hours). I scratched early to allow reserves to get a start. The RIU stewards expect us to break down dogs and not scratch for animal welfare reasons. Greyhound racing is my sole income and these dogs are my only racing dogs. Without them I have no income as stakes are what I live off.

2.2 Mr Clark has sought a stay of the suspension or stand down of his eleven (11) dogs.

3. THE RIU POSITION
3.1 The RIU advises that the stand down was pursuant to Rule 64.15. It opposes the stay application.

4. LEGAL ISSUES
4.1 The rules would appear to provide that the twenty eight (28) day suspension or stand down period is mandatory. The first question which arises is whether there is any right of appeal in relation to the application of the rule. The second question is whether, if there is a right of appeal, how it might be properly exercised. Rule 64 is headed up “Withdrawal after box draw”. Rule 64.7 provides that an owner or trainer may seek a review by a Judicial Committee of a decision under this rule in accordance with Rule 91.20. Rule 91.20 makes reference to a number of rules including Rule 64.7. It does not make reference to Rule 64.15. It

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