Appeal – WS & KF Clotworthy

hearingid: 926f40cdaa6eed81f465b7c71e0d9750

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Appeal - WS & KF Clotworthy

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The Appellants were each found guilty of charges of committing a dishonest act connected with racing under Rule 1001 (1) (p) having admitted the charge before a Judicial Committee at a hearing on 16 April 2007. The charge is a serious racing offence under the New Zealand Rules of Racing.

1. The Appellants were each found guilty of charges of committing a dishonest act connected with racing under Rule 1001 (1) (p) having admitted the charge before a Judicial Committee at a hearing on 16 April 2007. The charge is a serious racing offence under the New Zealand Rules of Racing.

2. The details of the charge, as set out in the information, were that " the horse LAURETTE was brought to the racecourse at Counties Park, for the purpose of running in a trial that was being conducted by the Counties Racing Club, on 30^th October 2006, and that LAURETTE, a horse that had won two races, started in trial No.20, a Maiden Catchweight 1200 trial, recorded in the program for the maiden horse PUNCHESTOWN to compete, being trained by [the Appellants], and that such act by [the Appellants] to have started another horse under a different identity [the Appellants] did commit a dishonest act connected with racing."

3. The Judicial Committee imposed a term of 3 months’ suspension on the "Clotworthy Training Partnership" and fined each Appellant the sum of $1,500 plus costs of $750.

4. Each Appellant has appealed against the decision of the Judicial Committee and the penalty imposed by the Judicial Committee. Leave was subsequently granted by this Tribunal for the appeal by the Appellant, Shaun Clotworthy, to be withdrawn.

5. The Tribunal directed pursuant to Rule 1205 that the hearing of the appeal by Kim Clotworthy would proceed by way of a hearing de novo having regard to the fact that no evidence was called at the hearing before the Judicial Committee at which both Appellants pleaded guilty.

6. Mr Brian Francis McKenzie, Racecourse Inspector for New Zealand Thoroughbred Racing, said that, on 1 March 2007, he went with Chief Racecourse Inspector, Mr J W McKenzie, to the Clotworthys’ residence at Karaka, Auckland. Both of the Appellants "were cooperative and seemed to make full and frank verbal admissions relating to the known facts of this matter under inquiry". Mr McKenzie prepared a written statement which was signed by Mr Shaun Clotworthy and confirmed in writing by Mr Kim Clotworthy, both having been present during discussions. In that statement, the Appellants confirmed "that the horse PUNCHESTOWN was not the horse that ran in heat 20 on the 30^th October 2006 but was, in fact, LAURETTE". A copy of the official program and results were produced. The former clearly showed PUNCHESTOWN as being a runner in Race 20, a Maiden Catchweight over 1200 metres, and the latter showed PUNCHESTOWN as finishing 3^rd in the Race.

7. Mr John William McKenzie, Chief Racecourse Inspector, confirmed that he had attended the home of the Appellants with Mr Brian McKenzie on 1 March 2007. He confirmed that both Appellants "readily acknowledged the swapping of horses" and that "without hesitation and of their own free will both acknowledged their guilt". He stated that Mr Shaun Clotworthy had read and signed the written statement, that it was then read by Mr Kim Clotworthy who "endorsed that the contents were true and correct".

8. Mr Allen Hodgetts, a Stablehand, gave evidence that he had attended the trials meeting at Pukekohe on 30 October 2006. He took one horse to the meeting for his employer, Mr Steve Pinfold, and travelled to the meeting in a truck with the Appellant, Shaun Clotworthy. He stated that, on arriving at the track, Kim Clotworthy came to the stabling area and attended the horses which Shaun had brought to the meeting. Mr Hodgetts stated that Kim Clotworthy was definitely present at the meeting prior to any of their horses trialling.

9. Catherine Elizabeth Cleghorn stated that, as at 30 October 2006, she was employed as a Stablehand /Track Rider by the Clotworthys. She attended the trials meeting at Pukekohe on 30 October 2006 and stated that she arrived "at around lunchtime" and met Shaun Clotworthy at the trials as he and Kim Clotworthy were unloading the three horses from their stable that were to run. The horses were taken to the tie-up stalls where Kim Clotworthy was tending to the horses and taking gear from the truck. She recalled talking to Kim Clotworthy. Prior to LAURETTE’s trial, she was told by Shaun Clotworthy words to the effect that if somebody asks you who this horse is, tell them it is PUNCHESTOWN. Miss Cleghorn stated that, between arriving at the trials and the horses trialling, Shaun Clotworthy spent most of his time in the stabling area, leaving only to go and watch a trial. Kim Clotworthy was "backwards and forwards" from the stabling area, she said. She did not recall who saddled LAURETTE for her trial but she did remember Shaun Clotworthy leading the mare to the parade ring accompanied by Kim Clotworthy. She said that she had no doubt that Kim Clotworthy knew that it was LAURETTE that had trialled.

10. Ryan Stuart Allwood, Licensed Apprentice Jockey, stated that he was employed by the Clotworthy’s as at 30 October 2006. He attended the trials meeting at Pukekohe on 30 October 2006 and rode three horses for the Clotworthy training partnership. He noted that LAURETTE had been brought to the meeting and was running in place of PUNCHESTOWN. When he asked Shaun Clotworthy for an explanation, he was informed that there was no open heat for the mare to run in and it was wanted to give her a quiet run. Mr Allwood stated that LAURETTE was presented in the birdcage to run in the Maiden Catchweight in which PUNCHESTOWN was to run and Kim Clotworthy, who was in the birdcage, legged him up onto the mare’s back. He said that everybody in the stable associated with handling the horse would have known the difference between LAURETTE and PUNCHESTOWN. In addition, the stable staff knew of the substitution. Mr Allwood rode LAURETTE into 3^rd place "under a hold" but was of the view that she could have won easily.

11. At the conclusion of the evidence for the Respondent on 26 June 2007, the hearing of the appeal was adjourned. Prior to the resumption of the hearing on 3 October 2007, the appeal by the Appellant, Shaun Clotworthy, was withdrawn by leave of the Tribunal.

12. At the resumed hearing, witness Ryan Allwood was further cross-examined by Counsel for Kim Clotworthy. Mr Allwood confirmed his earlier evidence that the first occasion on which he saw Kim Clotworthy at the meeting was in the birdcage prior to LAURETTE’s trial. Mr Allwood had been at the meeting for a maximum of two hours prior to that. He said that it would have been unlikely that he would have seen Kim Clotworthy during that period as he had been riding in trials. Mr Allwood confirmed that it was Shaun Clotworthy who gave him instructions regarding the ride on LAURETTE and not Kim Clotworthy. Counsel put it to Mr Allwood that Kim Clotworthy would give evidence that he had no involvement with Mr Allwood in relation to LAURETTE on the day. Mr Allwood stated that was false.

13. Mr Harry Keith Haub, a Retired Racecaller, gave evidence of an extensive involvement in the racing industry as a racing commentator (for over 35 years) in New Zealand and overseas and as an owner. He further stated that he had called and judged "thousands of trials" since 1965 at every racecourse north of and including Taupo. Mr Haub stated that it was not unusual for a horse of one "category" to run in a different "category" at a trials meeting. The trainer would have approached the raceday secretary responsible for the meeting and such horse would be deemed a "non-runner". He would not have regarded it as unusual to see a horse running out of its category at a trials meeting. He would have expected that the trainer had made "appropriate arrangements" by approaching the raceday secretary who would advise himself and the stewards. Under cross-examination by Mr Colson, Mr Haub acknowledged that, in such circumstances, a horse would race under its correct name.

14. At the outset of his evidence, Mr Kim Clotworthy stated that the stable horse float was, on the date of the trials meeting, in a garage for clutch repairs. The stable runners at the trials meeting on 30 October 2006 had been transported to and from the racecourse by Majestic Horse Floats Limited.

15. Mr Clotworthy said that, on 30 October 2006, he arrived home from Baylys Beach in the morning. He was aware that Shaun was taking some horses to the trials. He drove by car to Pukekohe to watch the horses run, arriving "in the middle of the day". Shaun runs the stable on a day-to-day basis, he said, with advice from him.

16. In response to the evidence given by Mr Allwood, Mr Clotworthy stated that he may have walked through the birdcage prior to LAURETTE running in the trial but did not specifically recall doing so. However, he said, he did not leg Mr Allwood up on to the horse prior to the trial.

17. Mr Clotworthy stated that he may sometimes "carry a saddle down". Shaun did the saddling up and the staff would hold the horse.

18. Mr Clotworthy said that both he and Shaun held a trainer’s licence and each of them is entitled to train by himself.

19. Under cross-examination, Mr Clotworthy confirmed that the annual stable return filed with New Zealand Thoroughbred Racing was filed in both the names of himself and Shaun and horses entered for races or trials were entered in the names of both as trainers.

20. The horse had arrived at the course when he arrived, Mr Clotworthy said, and he did not assist in unloading them. He conceded that he would have gone to see the horses "at some stage". Further, he admitted that he would have checked the legs of PUNCHESTOWN sometime that day because he knew that the horse was shin-sore.

21. He did not discuss with Shaun the horses that would be running at the trials that day because Shaun runs the "training setup" although Shaun may have suggested to him in the days prior to the trials what horses were going to the trials. He was aware that Shaun was going to trial PUNCHESTOWN.

22. Mr Clotworthy accepted that he was on course before LAURETTE started in the trial. However, he did not recall having any discussion with Allen Hodgetts at any time prior to that trial. He was not surprised to see LAURETTE at the meeting and he said that he thought Shaun had made arrangements to run the horse. He did not ask Shaun about any such arrangements either before or after the trial. He watched the trial on a television monitor in the grandstand and could not hear the commentary.

23. Mr Colson submitted that, against the backdrop of a guilty plea by Mr Clotworthy, the only logical ground for an appeal is a miscarriage of justice but submitted that there has been no error or irregularity that would allow the finding of a miscarriage of justice. Mr Clotworthy fully appreciated the merits of his position and had made an informed decision to plead guilty before the Judicial Committee.

24. Mr Colson submitted that, if the Tribunal believed there had been a miscarriage of justice, the Tribunal should proceed to consider the matter de novo.

25. On the basis of the evidence, Kim Clotworthy was aware that LAURETTE was to start in the trial prior to its doing so. Alternatively, Mr Clotworthy should have approached the authorities upon discovering the facts and, in failing to do so, committed an offence.

26. Mr Colson summarised the evidence given for the Respondent by Allen Hodgetts, Catherine Cleghorn and Ryan Allwood.

27. Mr Colson referred to the evidence of Kim Clotworthy. He referred to Mr Clotworthy’s demeanour which was in stark contrast to the demeanour of the other witnesses. He had given a number of changed answers and there were inconsistencies in his evidence.

28. Mr Colson then addressed the issue of service and the alleged lack of a caution with reference to the Judges’ Rules, Section 30 of the Evidence Act 2006 and the New Zealand Bill of Rights Act 1990.

29. Finally, in relation to the ground of appeal that the Judicial Committee failed to give proper weight to the background, the evidence and the lack of causal link, Mr Colson submitted that Kim Clotworthy knew prior to the event that LAURETTE was improperly entered.

30. Mr Peters submitted that the Respondent was required to prove beyond reasonable doubt the involvement of Mr Kim Clotworthy prior to the act arising, the act being, in this case, the entry of the horse LAURETTE under the name PUNCHESTOWN and that he was aware or had the knowledge that no authority had been given for LAURETTE to run in that trial.

31. He submitted that Kim Clotworthy had no knowledge of what was happening on the day of the trials and that it was a "spur of the moment decision" of Shaun acting alone.

32. Mr Peters referred to the issues relating to service of the information on Kim Clotworthy and the lack of any caution being given. No service had been effected upon Kim Clotworthy, he submitted.

33. Mr Peters submitted that the evidence of both Allen Hodgetts and Catherine Cleghorn was unreliable. With reference to the evidence of the former, Mr Peters submitted that it was discredited by virtue of his evidence that the Clotworthy’s truck was at the trials whereas it was in the garage for repairs.

34. The evidence of Kim Clotworthy was straightforward. He had only returned home on the day of the trials, virtually going straight to the trials. He does not deny being present before the trial was run or that he walked through the birdcage area. He does deny that he legged Ryan Allwood up on the horse and that he was involved in unloading the horses.

35. Even accepting Mr Allwood’s evidence, which was not accepted, Mr Clotworthy had still not committed a dishonest act if he genuinely believed that Shaun had made the arrangements for LAURETTE to run in place of PUNCHESTOWN.

36. Mr Peters referred to the standard of proof. He submitted that a balance of probabilities was not enough. If there is any doubt that there has been an honest mistake as opposed to fraudulent conduct in this case, Mr Clotworthy was entitled to the benefit of the doubt.

37. The Respondent had not addressed the issue of whether Kim Clotworthy knew of the event prior to it happening and the fact he had not reported the matter subsequently cannot amount to dishonesty or fraud on his part.

38. The Appellant, Kim Clotworthy, has appealed against the decision of the Judicial Committee and the grounds of his appeal are set out in his Notice of Appeal as follows:

(1) There was a failure on the part of the [Respondent] to serve notice of the charges as against the Appellant;

(2) There was a failure on the part of the [Respondent] to properly advise the Appellant of his rights and/or in the alternative the advice provided to the Appellant was legally incorrect, breached the rules of natural justice and induced the Appellant to compromise his rights;

(3) The Judicial Committee failed to give proper weight to the background of the information being laid and the evidence of the Appellant; and

(4) The decision of the Judicial Committee has no relevance or causal link to the charge as set out in the information.

39. Mr Clotworthy had admitted the charge of committing a dishonest act connected with racing at the hearing before the Judicial Committee. At the hearing before this Tribunal, which was by way of a hearing of the charge de novo, the charge was denied by Mr Clotworthy.

40. It was argued on behalf of Mr Clotworthy that the information and details of the charge had not been validly served on him. Further, it was argued that he had not received an adequate caution as to the nature and severity of the charge and his legal rights in relation to the charges. The Respondent disputed those arguments and argued that service had been validly effected and that there was no legal obligation on its officers to issue a formal caution.

41. The Tribunal finds that, because of the procedure adopted for the appeal, it is not necessary to make a finding on those matters. At the hearing of the appeal before this Tribunal, Mr Clotworthy was represented by experienced Counsel and the Tribunal has no doubt that he had received full and competent advice from his Counsel as to the charge he was facing. Any procedural defect relating to service or caution had been overcome by the time the charge came before this Tribunal. At the hearing before this Tribunal, Mr Clotworthy had the opportunity to present a full defence to the charge and he was, therefore, not prejudiced in any way by any procedural defect which may have been present in the proceedings before the Judicial Committee.

42. The other grounds of appeal (Grounds 3 and 4 referred to above) were dealt with by the evidence given before this Tribunal at the rehearing of the charge.

43. It was accepted by Mr Clotworthy that he was present at the trials meeting at Pukekohe on 30 October 2006. The Respondent called evidence from three witnesses from which evidence it was clear that Mr Clotworthy had been at the track before the trial, Race 20 at 2.42pm. Mr Clotworthy, in his evidence, said that he arrived at the meeting about "the middle of the day". He said that he may have walked through the birdcage prior to the trial and that he watched the trial on a television monitor in the grandstand.

44. It was further accepted by Mr Clotworthy that the 5-year-old mare named LAURETTE raced in Race 20 in place of the 5-year-old gelding PUNCHESTOWN. Both horses were trained by the Kim & Shaun Clotworthy training partnership.

45. For the Respondent, Allen Hodgetts said that he saw Kim Clotworthy in the stabling area attending to the horses that Shaun had brought to the meeting and that Kim Clotworthy was definitely present at the meeting prior to any of the Clotworthy horses trialling. Catherine Cleghorn, an employee of the Clotworthys, also attended the meeting and stated that she saw both Clotworthys unloading the three horses from their stable that were to run. She saw Kim Clotworthy tending to the horses in the tie-up stalls and she recalled having spoken to him. She stated that Shaun Clotworthy led LAURETTE to the parade ring accompanied by Kim. Ryan Allwood, a jockey, gave evidence that he was legged up on to LAURETTE prior to riding the mare in the trial.

46. The Tribunal finds that the evidence of those three witnesses was credible and convincing.

47. Mr Kim Clotworthy, while acknowledging that he was aware that LAURETTE was running in Race 20 in place of PUNCHESTOWN, explained that he had assumed that Shaun had obtained prior clearance for the substitution from the raceday officials. This a key issue of fact for the Tribunal to determine. If Kim Clotworthy did not know, or could not be expected to know, that the necessary permission had not been obtained then his involvement was, at worst, as an accessory after the fact.

48. The Tribunal found Mr Clotworthy’s evidence of events at the trials meeting prior to Race 20 was unconvincing and fell short of the degree of credibility of the Respondent’s witnesses.

49. For this Tribunal to find proved the charge of committing a dishonest act connected with racing, it must be satisfied, principally, as to four matters:

(1) That Mr Kim Clotworthy was present at the meeting prior to LAURETTE running in Race 20. It is clear from the evidence, and it was not disputed by him, that he was so present.

(2) That he was aware that LAURETTE was to run in Race 20 in place of PUNCHESTOWN. The Tribunal is satisfied that he was aware based on the evidence of all three of the Respondent’s witnesses. The evidence of those witnesses is preferred to the evidence of Kim Clotworthy.

(3) That he had knowledge that appropriate arrangements had not been made for LAURETTE to run in Race 20 in place of PUNCHESTOWN. The evidence of the Respondent’s witnesses, which we have said we found credible and convincing, was to the effect that Kim Clotworthy was present at the meeting for some time prior to Race 20 and had been involved with the horses. The Tribunal does not accept that he had not made enquiries of Shaun during that time as to whether or not he had obtained permission for LAURETTE to run in place of PUNCHESTOWN. Mr Kim Clotworthy must have known or ought to have known the consequences of substituting the horse without such permission and the Tribunal simply does not accept that he would not have made that enquiry of Shaun. It is not a defence for him to assert that he did not make such enquiry, knowing the consequences, and knowledge can be imputed to him in those circumstances.

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4. Having satisfied itself as to each of the above matters, that Mr Clotworthy’s conduct amounted to a dishonest act as required by Rule 1001 (1) (p). The Tribunal takes "dishonest act" as meaning an act or conduct "discreditable as being at variance with straightforward or honourable dealing, underhand" (Oxford English Dictionary, 2^nd Edition, 1989). It is self-evident that Mr Kim Clotworthy’s being a party to the deception in substituting one horse for another brings his conduct within that definition and, therefore, constitutes a "dishonest act", an act that was compounded by his decision not to inform the authorities of what he and Shaun had done. That they made such a decision together is clear from the transcript of the hearing before the Judicial Committee.
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50. Accordingly, the Tribunal is satisfied as to all of the above four matters. As to the standard of proof referred to by Mr Peters, the Tribunal is satisfied having regard to the higher standard of proof that, the Tribunal accepts, is required in the case of a serious racing offence.

51. The appeal by Mr Kim Clotworthy is dismissed and the charge of committing a dishonest act connected with racing is found proved. This finding is in place of the finding of the Judicial Committee in respect of the charge against the Appellant, Kim Clotworthy.

52. The Tribunal requires Counsel for both parties to file written submissions in relation to penalty and costs within 14 days of the date of this decision.

R G McKenzie                                                 J M Phelan

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Rules: 1001.1.p

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