Auckland TC 6 December 2013 – R 2 (adjourned-heard 24 January 2014) Penalty Decision 12 February 2014

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hearing_title: Auckland TC 6 December 2013 - R 2 (adjourned-heard 24 January 2014) Penalty Decision 12 February 2014

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Penalty Decision:
BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND
IN THE MATTER of Harness New Zealand Rules of Racing
BETWEEN Mr N McIntyre (RIU)
Informant
AND
Mr R Downey (Open Horseman)
Defendant
JUDICIAL COMMITTEE: Mr G Jones, Chair - Mr B Scott, Committee Member
DATE OF HEARING: 24 January 2014
DATE OF WRITTEN DECISION: 29 January 2014
DATE OF PENALTY DECISION: 12 February 2014

Penalty Decision
[1] Mr Downey faced one charge under Rule 1001 (1)(k) relating to the wilful supply of misleading information to a Stewards Inquiry at Alexandra Park on 6 December 2013. Following the hearing on 24 January 2014 this Committee issued our written decision on 29 January 2014 which outlined our reasons for upholding the charge against Mr Downey. That decision has been published and there is no need to repeat those reasons in this decision.

[2] We invited the Informant and Defendant to present submissions as to penalty. As a result we have received very thorough written submissions from each party.

Submissions for the Informant
The submissions lodged by Mr Neal on behalf of the Informant have been assessed by the Committee and are summarised as follows:

[3] As of 3rd February 2014 Mr Downey has driven in 1039 races and has been continuously licensed since 2003. His driving record reveals no prior offending under this rule or any other rule contained within the serious racing offences section.

[4] This offence is of significance as it is premised on honesty, or in this particular case the lack of honesty demonstrated by Mr Downey.

[5] This is a serious case of a licensed person knowingly providing false evidence to the Stewards, which as a consequence expended unnecessary time delving into the matter. There can be no room in harness racing for licensed persons to wilfully mislead and hide the truth from the Stewards.

[6] The misleading information supplied by Mr Downey which led to the charge was not in isolation. Nor were they spur of the moment falsehoods which were spontaneously exclaimed by him when he was confronted by the Stewards asking questions about a culpable party. Rather, they were premeditated answers, which Stewards contend were given to shelter another person from being charged with an offence under the rules.

[7] Stewards believe there is a need in this case for both personal and general deterrence as well as signalling to industry participants the necessity for them to provide truthful information in relation to Stewards inquiries and investigations.

[8] In terms of penalty - the Informant referred the Committee to the case of RIU vs. B (2011) where B attempted to mislead the Stewards and protect a fellow driver from fault by making misleading statements with respect to where in the race he had sustained a flat tyre. In this case B was ultimately found to have breached the provisions of Rule 1001 (1)(k). The result being that B was suspended from driving in races for a period of two weeks and fined $400.

[9] The Informant submits that the facts in B’s case are similar in many circumstances to this matter, excepting that B, when confronted with the facts, admitted that he had attempted to mislead, whereas Mr Downey has stoically denied any wrong doing. This is of concern to the Stewards, because Mr Downey was provided an opportunity to `come clean’ and furnish the Stewards with an accurate account of goings on, yet he perpetuated his falsehood and steadfastly attempted to mislead the Stewards as to the cause of MEDLEY MOOSE being interfered with. This prolonged denial being, it is respectfully submitted, is an aggravating factor.

[10] In summary it is the Informants position that having regard to all the circumstances both a suspension of Mr Downey’s licence to drive in races and a fine is the appropriate penalty in this case. Taking into account the quantum imposed in B and applying the fact of Mr Downey’s continuing denials and reluctance not to apportion responsibility to another party it is submitted that as suspension of not less than two weeks together with a fine of not less than $750.00 is appropriate.

Submissions for the Defendant
The submissions lodged by Mr Lawson on behalf of the Defendant have been assessed by the Committee and are summarised as follows:

[11] Mr Downey accepts the Committees decision and now realises that being “guarded and reserved” can be interpreted as supplying misleading information. Mr Downey advises that he has learnt a valuable lesson and will be much more forthcoming and frank in any future discussions with Stipendiary Stewards.

[12] Mr Downey has been found guilty of supplying misleading information – not supplying false information (the other part of Rule 1001 (1)(k)) and of the two crucial elements of the rule Mr Lawson submits that supplying false information is more serious than supplying misleading information. He further submits that if a horseman is found to be guilty of supplying misleading information it makes sense that the penalty for the breach is at the lower level than what it would be for giving false information.

[13] Mr Lawson submits that no horse was disadvantaged by Mr Downey’s actions and the betting public themselves were in no way disadvantaged, and there is no breach of the integrity of harness racing in this case. He submits that the only persons affected in this case were Stipendiary Control and Mr Downey; there is no need to consider the effect on any other parties.

[14] Mr Downey has received a stern lesson and will learn from it. This is not endemic in Harness Racing – there are very few similar cases – RIU v B (2011) is the only marginally similar case in recent times confirms that. There is no need to send a message to other participants as this is not a common problem or occurrence in Harness Racing.

[15] Mr Lawson submits that the starting point for the penalty in this case should be that of B, which is the only similar case, the marked difference being that B lied or gave false information and he received a $400 fine and 3 day suspension.

[16] In summary, Mr Lawson submits that this breach can adequately be dealt with by way of $350 fine. He argues this would send the necessary message to Mr Downey, who he says has shown remorse, and it would satisfy the requirement of sending a message to other industry participants that this type of incident will not be tolerated.

Reasons for Penalty

[17] The Committee has diligently given due consideration to all of the relevant facts including the particular circumstances of this case as well as the detailed submissions lodged by both the Informant and Defendant.

[18] In determining the penalty we have been guided by the pertinent Harness New Zealand Rules relating to penalties, the Judicial Control Authority Penalty Guidelines, and a limited number of precedent cases. This has provided us with a sound decision making basis to ensure we maintain consistency with penalties for similar breaches in comparable circumstances.

[19] The Committee has also taken into account any consequential effects upon any person as a result of breach of the Rule and the need to maintain integrity and public confidence in Harness Racing.

[20] NZ Rules of Harness Racing deem a breach of Rule 1001 (1)(k) to be a serious racing offence. Therefore we treat this breach as a serious racing offence and penalties for such a breach are set out in Rule 1001 (2)(a)(b), which provides that:

Every person who commits a serious racing offence shall be liable to the following penalties:

(a) a fine not exceeding $30,000; and/or (b) suspension from holding or obtaining a license, for any specific period; and or, (c) disqualification for a specific period or for life.

[21] The Committee believes that this breach could have easily been avoided by Mr Downey had he not continued to mislead Stewards during his second interview. In effect he was given a second opportunity to provide Stewards with the real reason for his drive being checked and interfered with, but he elected not to do so.

[22] Ultimately Stewards were not fooled by Mr Downeys continued prevarication, but the resultant consequences were that Mr Green was drawn into the investigation and there was an unneccessary waste of time and effort expended by Stewards.

[23] The Committee has noted that a breach of this Rule is not included in Penalty Guide for Judicial Committees. This is because this rule is not often breached and penalty is often determined by the facts of each case. On that basis the public can be assured that this type of behaviour is very rare in racing and when it does occur Stewards take the appropriate action to ensure that integrity of racing is maintained.

[24] Notwithstanding the limited number of cases the Committee has taken guidance from RIU v B, which was referred to by both the Informant and Defendant in their submissions. The Committee has also noted the findings in RIU v W (2011) which related to a driver who supplied false and misleading information to Stewards.

[25] We have noted the similarities and points of difference between B and W and this case. B was fined $400 and suspended for 2 weeks after admitting the breach at the first opportunity. W faced two charges and he was suspended for a period of 4 months.

[26] The circumstances of B are more closely proximate to this case because that breach arose from the running of a race and B misled Stewards by providing false information to protect another driver. Therefore in our opinion the penalty handed out in B establishes a valid starting point and benchmark for us to determine this penalty.

[27] Mr Lawson’s reference in his submissions to Rule 872 and the penalty received by Mr D Butcher are noted by the Committee, but have little relevance in terms of our assessment of Mr Downey’s penalty.

[28] We give Mr Downey credit for his good driving record and the fact that he has not previously breached this rule or any other serious racing offence.

[29] We propose that Mr Downey will receive a fine and suspension. For the purpose of assessing the dates that the suspension will encompass we have treated Mr Downey as a horseman who drives only at meetings in the upper half of the North Island, that is to say from Cambridge north. We have not included Manawatu meetings because our enquiries show that Mr Downey has not driven there for at least the last 2 years.

Penalty and Costs
[30] Mr Lawson submitted that costs should “fall where they lie”. He said that both parties submitted written submissions prior to the hearing and the transcripts were admitted by consent, and no witnesses were required to be called. The Committee agrees that costs were kept to a minimum as a result of both the Informant and Defendant agreeing to admit most of the evidence by consent.

[31] Mr Lawson added that this breach occurred on 6 December 2013 and was not heard until 24 January 2014, and the delay in hearing the charge was not due to any action on the part of the Defendant.

[32] The RIU have not sought costs.

[33] Although this matter was heard on a race day it was conducted in the nature of a non-race hearing, on that basis some JCA costs have been incurred.

[34] Having carefully considered all of the material that has been placed before us we impose the following penalties and make the following orders:

[a] That the Defendant Mr Downey is fined $450 and his licence is suspended for 4 driving days commencing at the conclusion of racing on 14 February 2014 until the conclusion of racing on 4 March 2014. For the sake of clarity the 4 days of suspension include meetings at Auckland 21 February 2014, Avondale 24 February 2014, Auckland 28 February 2014 and Auckland 4 March 2014.
[b] That no costs in favour of the RIU are awarded.
[c] That on this occasion the JCA has not sought costs.

G Jones          B Scott
Chair             Committee Member
 

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