Appeal – TJ Carter May 2006

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startdate: 01/01/2001

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hearing_title: Appeal - TJ Carter May 2006

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On the 14th February 2006, Mr TJ Carter was found by a Judicial Committee to have breached Rule 304 of the New Zealand Thoroughbred Rules of Racing in that he had sent to Mr RA Hewetson an e-mail containing words that were found to be "obscene, insulting and offensive."

                   IN THE MATTER of an appeal by T.J.CARTER

                   against the decision of the

                   Judicial Committee sitting at

                   Te Rapa on the 14th February 2006.

TJ Carter - Appellant

Represented by Mr AJ Ryan assisted by Ms R Parker

Mr JW McKenzie for the Respondent

Represented by Mr MG Colson

Mrs M Stanbury, Registrar

Judge NF Smith, Chairman

Mr RG McKenzie, Member

Te Rapa Race Course Hamilton

________________________________________________________________________________

On the 14th February 2006, Mr TJ Carter was found by a Judicial Committee to have breached Rule 304 of the New Zealand Thoroughbred Rules of Racing in that he had sent to Mr RA Hewetson an e-mail containing words that were found to be "obscene, insulting and offensive."

Mr Carter through his counsel has filed an appeal against the finding that he was in breach of the said Rules and the penalty and costs imposed.

At the conclusion of the appeal hearing this Appeal Tribunal reserved its decision to enable it to consider further the submissions made and peruse the original submissions of Mr Ryan referred to but not produced at the hearing.

The decision of the Appeal Tribunal is as follows.

This appeal tribunal has heard the submissions put forward by Mr Ryan on behalf of the appellant and had the opportunity of perusing the submissions made by him before the Judicial Committee, part of which he incorporated into the submissions in this present hearing. The Tribunal also heard detailed submissions from Mr Colson on behalf of the Respondent.

The grounds for appeal were stated as follows:

1. The decision was wrong in fact and in law.

2. New Zealand Thoroughbred Racing Incorporated has no jurisdiction to lay the charge.

3. The decision failed to give adequate reasons as to jurisdiction and misconduct and the finding of guilt.

4. New Zealand Thoroughbred Racing totally lacked any jurisdiction to bring the charge which can only be founded under the Racing Act 2003 pursuant to rules validly made pursuant to the Racing Act. Any charge which does not conform with that formula is invalid for want of jurisdiction and statutory authority.

5. The communication complained of was a private email and as such does not come within the provisions of the Racing Act 2003.

6. The wording and the sending of the email did not amount to misconduct.

7. The penalty imposed as a fine and costs is excessive and inappropriate.

Counsel for the appellant addressed the grounds in his submissions relying largely upon the matter of jurisdiction.

That matter was fully considered by the Judicial Committee who found that Mr Carter was a " licensed person" within the provisions of Rule 303 of the New Zealand Thoroughbred Rules of Racing, and therefore subject to the obligations imposed on him as such a licensed person. He is also subject to the requirements of Rule 304 and any penalties imposed in respect to any breach thereof.

The suggestion that the email was a private communication between Mr Carter as the sender and Mr Hewetson as the recipient and as such is beyond the jurisdiction of the Judicial Committee cannot be sustained.

As the Judicial Committee stated in its decision, the recipient in his evidence that the words used in the email were " obscene, insulting and offensive" resulting in his complaint to Mr BF McKenzie, the Racecourse Inspector.

The fact that Mr Hewetson on receiving the email was so affected by it, the fact that the Judicial Committee accepted his evidence that the words contained in the message were obscene and insulting, and that the message was sent by a licensed person under the rules clearly establishes that the matter falls within Rule 304 of the above Rules, giving the Judicial Committee jurisdiction to deal with the matter.

Efforts were made during the initial hearing to limit the weight to be attached to the words which it was suggested were now in everyday use. Individually that might be the case in limited circumstances and locations, however, the totality of the words used and the specific reference to Mr Hewetson establishes beyond doubt that the words were capable of being interpreted and were in fact so interpreted as obscene and insulting. The Appeal Tribunal believes that the words used would be regarded as obscene, insulting and offensive by any reasonable and right-minded person.

The Committee accepted that the sending of the message including words found by the recipient as being obscene and insulting constituted misconduct on the part of Mr Carter and therefore a breach of Rule 304 had been committed.

We are aware of the Constitution of New Zealand Thoroughbred Racing where at article 18 [1] [a] dealing with the Rules it states:

"The Rules shall apply to all races and race meetings and all matters connected with racing and shall apply and be binding on all persons and bodies described therein including, where appropriate, horses." The emphasis has been added.

Mr Carter, being a licence holder within the meaning of Rule 303, is caught by the provisions of article 18 [1] [a] of the Constitution, and therefore bound by the implied good behaviour bond in rule 304. Any breach by way of misconduct or otherwise makes him amenable to the jurisdiction of the Judicial Committee.

We have given due consideration to all of the submissions put forward by Mr Ryan in support of all of the stated grounds of appeal but cannot see any justification in interfering in any way with the findings of the Judicial Committee that it had jurisdiction in this matter and that the evidence supported the fact that Mr Carter's action constituted a breach under rule 304.

We have considered the submissions made by Mr Colson, Counsel for the informant, and are indebted to both him and Mr Ryan for their assistance in this matter.

We have also taken the opportunity of perusing the submissions put before the Judicial Committee on the matter of penalty and costs.

The maximum fine that can be imposed for breaches of this nature in terms of Rule 1003, is $10,000.00

The fine imposed in this instance was $1,000.00.

The Judicial Committee's jurisdiction in respect to costs is set out in Rule 1122[3], which states;

"[3] The judicial Committee may order that all or any of the costs and expenses of;

[a] any party to the hearing;

[b] any other person granted permission to be heard at the hearing by direction of the Judicial Committee;

[c] Thoroughbred Racing and/or any employee or officer thereof,or

[d] the Judicial Control Authority and the Judicial Committee

be paid by such person or body as it thinks fit."

In this present matter the Judicial Committee ordered Mr Carter to pay costs of $750.00 to NZTR and $450.00 to JCA.

The fine and costs imposed were within the jurisdiction of the Judicial Committee and we have heard nothing sufficient to warrant our interfering with those orders.

In the absence of any compelling reasons for this Appeal Tribunal to intervene in the decisions of the Judicial Committee we dismiss the appeal both as to the finding of the breach and penalty.

The filing fee is forfeited, and the Appellant is ordered to pay costs on the appeal in the amount of $750.00, together with a further sum of $400.00 towards the expenses of JCA.

Dated at Tauranga this 12th day of May 2006.

NF Smith

Chairman

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Rules: 1122.3

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