Auckland TC 6 December 2013 – R 2 (adjourned – heard 24 January 2014)

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decisiondate: 22/01/2014

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

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

Adjourned Hearing: RIU v R Downey – 24 January 2014

RESERVED DECISION

Rules: 1001 (1) (k)

Information Number: A4303

Informant: Mr N McIntyre (Co-Chief Stipendiary Steward)

Repondent(s)/Other parties: Mr R Downey (Open Horseman)

Name(s): Mr R Lawson (Lay Advocate assisting Mr Downey)

BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND

IN THE MATTER of Harness New Zealand Rules of Racing

BETWEEN Mr N McIntyre

Informant

AND

Mr R Downey

Defendant

JUDICIAL COMMITTEE: Mr G Jones, Chair - Mr B Scott, Committee Member

VENUE: Alexandra Park, Auckland

PRESENT:

Mr R Neal (Co- Chief Stipendiary Steward), Mr J Muirhead (Stipendiary Steward), Mr R Lawson (Lay Advocate assisting Mr Downey), Mr B Jones (Registrar)

DATE OF HEARING: 24 January 2014

DATE OF WRITTEN DECISION: 29 January 2014

Background Information

[1] This charge arises from race 2, the GOTTA GO CULLEN MOBILE PACE 3YO+ C1 2200 at the Auckland Trotting Club meeting on 6 December 2013.

[2] Following the race a Steward's inquiry was opened into an incident that occurred near the 800 metre mark. Stewards interviewed a number of people including Open Horseman Mr D Butcher (HOT MACH) and Mr R Downey (MEDLEY MOOSE) as well as the Trainer of MEDLEY MOOSE, Mr R Green.

[3] As a result of those enquires Mr D Butcher was charged with breaching Rule 869 which he admitted and was dealt with and disposed of on the night. The basis of this charge was that Mr Butcher permitted HOT MACHO to shift inwards when not clear of MEDLEY MOOSE causing that horse to ease and trailing horses to be checked to varying degrees.

[4] Stewards conducted further enquiries with Mr Green and Mr Downey which resulted in an information being filed alleging that Mr Downey breached Rule 1001 (1)(k). The Information alleged that:

“Driver R Downey supplied false and misleading information to a Steward's inquiry regarding a racing matter which occurred near the 800 metres”.

[5] A hearing was opened on the night and adjourned to a date to be set by the Judicial Control Authority. The date of 24 January 2014 was set and agreed to by all parties.

[6] Prior to this hearing both the Informant (via Mr R Neal for the RIU) and Defendant (via Mr R Lawson for Mr Downey) lodged written submissions which outlined their respective positions in relation to the charge. Mr Lawson also confirmed Mr Downey’s denial of the breach.

[7] By way of email communications on 23 January 2014 between the Judicial Committee (“the Committee”) and Mr Neal and Mr Lawson a consensus was reached:

a. That the written transcript of interviews of Mr Downey (x 2), Mr Butcher and Mr Green (x 2) may be admitted into evidence by consent.

b. That the contents of the interviews are admitted, thus negating the requirement for those witnesses to give evidence orally (viva voce).

The Charge

[8] At the commencement of the hearing, by agreement and in accordance with R1111 (5) and (6) the Information was amended to correct a minor error in the form by inserting the numeral “(1)” in the rule referred to in the information, thus changing it from 1001(k) (as set out in information) to 1001(1)(k) (as it is set out in the Rules).

[9] The Committee also pointed out to the Informant that the Rule relating to this breach included the word “Wilfully”, but this was omitted from the Information. The Informant acknowledged and accepted that wilfully was a necessary ingredient of the charge. Accordingly, there was an agreement and common ground that the ingredients to be established to the requisite standard proof, (i.e. on the balance of probabilities), were that the Defendant (a) wilfully, (b) supplied false or misleading information, (c) to a Stipendiary Steward.

This is in conformity with the Rule 1001 (1)(k) which provides that:

Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:

“(k) wilfully supplies any false or misleading information, or makes any false or misleading declaration or statement, respecting any matter connected with racing or otherwise under these Rules to a Judicial Committee, an Appeals Tribunal, the Chairman, the Board the Stewards or Committee of a Club, a Stipendiary Steward, a Racecourse Inspector or any other Body, tribunal or person; or wilfully makes a false or misleading statement in support of an application for any payment out of any trust fund; or in, or in connection with, any application for registration of a horse wilfully gives or causes to be given, or is knowingly a party to the giving of, any false or misleading information or particulars”.

[10] The charge was read to the Defendant by the Registrar, Mr B Jones and he confirmed to the Committee that he denied the breach.

[11] The Committee outlined the proposed procedure for the conduct of the hearing and no concerns or objections were raised. Mr Neal advised the Committee that all relevant documents had been disclosed and Mr Lawson acknowledges that he had received all disclosure material on behalf of Mr Downey.

Evidence

[12] Mr Neal advised the Committee that Stipendiary Steward, Mr J Muirhead, using available video footage, would provide his interpretation of the incident and interference that gave rise to the Steward's inquiry following race 2 at the Auckland Trotting Club meeting on 6 December 2014. He also formally presented into evidence the transcribed interview statements of Mr D Butcher, Mr R Green and Mr R Downey. He added that Mr Downey and Mr Green were interviewed twice. These are referred to at paragraphs 20 to 24.

[13] Mr Muirhead advised the Committee that near the 700 metres, MEDLEY MOOSE (R Downey) which was racing in front and on the inside of HOT MACH (D Butcher), was dictated inwards over the markers and had to be restrained. He said that at the time both horses were challenging for the lead, but after a short time Mr Downey eased MEDLEY MOOSE.

[14] He said that as a result of MEDLEY MOOSE being restrained it crossed over several marker pegs and at least four horses following were all hampered and checked to varying degrees.

[15] Mr Muirhead confirmed that Mr Butcher was found to be at fault for the manoeuvre and he was charged and admitted the breach.

[16] Under cross examination by Mr Lawson, Mr Muirhead reiterated that in his opinion MEDLEY MOOSE was cramped for room as a direct result of being hampered by HOT MACH.

[17] At this juncture evidence for the Informant concluded and Mr Lawson indicated that he would not be calling any witnesses, including oral evidence from Mr Downey. He said that Mr Downey’s testimony is as he outlined in his interviews to Stewards and as previously agreed he asked that they be formally admitted into evidence. He further added that he proposed to outline the main points in his written submissions.

[18] Similarly Mr Neal advised the committee that he proposed to verbally address the Committee on the salient points contained within his written submissions.

[19] The Committee agreed with this approach. In terms of the interviews of Mr Downey and Mr Green which were admitted into evidence by way of ‘hand up’ statements. The salient points are summarised as follows:

[20] Mr Downey was interviewed by Co-Chief Stipendiary Steward Mr N McIntyre. When asked by him what occurred near the 700 metres Mr Downey replied “I eased the pace quite considerably Sir, given the fact that my horse done a lot of work to get to the front, um, Mr Butcher seen the fact that I have eased the pace. He thought he was able to get round me and I sort of bustled my horse up to keep him out and sort of just had too much speed so I grabbed”.

[21] When asked why he grabbed, Mr Downey responded “Well at that stage of the battle he had me covered so I pulled out”. Mr Downey was shown the video film of the incident and asked why the horse struck the pylon. Mr Downey responded “He is easing back; he does wear a running pole”. He was again asked why he eased and responded “It was a lost battle, it was a nothing situation”.

[22] Mr Butcher was present during the interview and he was also asked questions by Mr McIntyre. His responses have been noted by the Committee but they are of limited value in terms of the facts in issue. However they are relevant to the extent they assist by providing some useful contextual information.

[23] Mr Green, the trainer of MEDLEY MOOSE was asked by Mr McIntyre whether following the race, Mr Downey made any comment to him. Mr Green responded “He said he had to take hold of his horse because the other guy cut him off”. (Remainder inaudible). Mr Green added “Well he said it was close, he had to settle his horse”.

[24] Mr Downey was again questioned by Mr McIntyre concerning comments he has allegedly made to Mr Green and in essence he denied that he made any such comment to Mr Green. As a result Mr Green was re-interviewed and he confirmed his earlier statement adding “He said he had too, he had to take hold of his horse as he got shortened up……he said he had to take hold……Butch got in a bit close and cut it a bit fine….”.

Submissions for the Informant

[25] Mr Neal referred to the written submissions which he lodged prior to the hearing and reinforced some of the key points.

[26] He submitted the thrust of Mr Downey’s evidence when interviewed by Stewards was that Mr Butcher had no part in MEDLEY MOOSE having to be restrained but rather it was the racing manners of MEDLEY MOOSE which were to blame. He said the Stewards pressed Mr Downey numerous times on the point regarding why he had to restrain MEDLEY MOOSE but on each occasion he refused to concede that Mr Butcher was the cause of him being interfered with.

[27] He submitted Stewards then Interviewed Mr Ray Green the trainer of MEDLEY MOOSE, asking him what had been said by Mr Downey upon returning to the stabling complex. Mr Green stated that Mr Downey said “he had to take hold of his horse because the other guy cut him off”. Stewards then re-interviewed Mr Downey regarding what Mr Green had told the Stewards, in particular that MEDLEY MOOSE had been cut off and it was tight and Mr Downey denied making these statements to Mr Green. Mr Green was then re-interviewed and confirmed his earlier evidence that Mr Downey had told him that “he had to take hold of his horse as he got shortened up”

[28] Mr Neal submitted Stewards had concerns on the night with Mr Downey’s evidence adduced at the hearing which was inconsistent with the available video footage and also Mr Green’s comments on the matter to Stewards.

[29] Mr Neal submitted that the evidence tendered by Mr Downey was false and it attempted to mislead the Stewards as to the cause of MEDLEY MOOSE being interfered with. The thrust of the Stewards evidence is three-fold; this being;

a) First, the films of the incident are clear and unequivocal

b) Second, Mr Green’s evidence was direct and well recalled

c) Third, Mr Butcher acknowledged his involvement in the matter by admitting his wrongdoing.

[30] Referring to video footage, and evidence of Mr Muirhead, he submitted it is obvious from the films that the cause of Mr Downey’s difficulties was Mr Butcher's shift inward.

[31] Mr Green’s evidence was that Mr Downey had given an explanation to him of what had occurred near the 700 metres, this being that MEDLEY MOOSE had been interfered with and that this was as a direct consequence of Mr Butcher's driving at this point of the race.

When questioned on this point Mr Green’s (RG) replies in the first interview to Mr McIntyre (NM) were:

NM - Mr Green, just going back to an incident in Race 2, following the running of this race did Mr Downey make any comment to you when he came back.

RG - He said that he had to take hold of his horse because the other guy cut him off. (Inaudible).

And in the second interview; ‘

NM - Mr Downey in relation to the comments he made to you down at the stabling area.

RG - He is probably reluctant to drop anyone in it. What you saw on the film irrespective of what anyone said.

NM - But the comments as you said in the initial interview were that he cut him off and things were very tight.

RG - He said he had too; he had to take hold of his horse as he got shortened up.

[32] Mr Neal submitted Mr Butcher admitted that he was responsible for MEDLEY MOOSE being taken over markers and for Mr Downey having to restrain the gelding. Had this not been the case then it would not have consistent for Mr Butcher to admit the charge, however he, when confronted with the evidence readily admitted his wrong-doing.

[33] In terms of Mr Downey’s response to questions put to him by Mr McIntyre, Mr Neal submitted that Mr McIntyre, questioned Mr Downey at length as to the cause of him having to restrain MEDLEY MOOSE, and to the involvement and contribution of Mr Butcher to the incident, but Mr Downey's response was, in the Stewards' view to protect him from any culpability. He submitted this was apparent during questioning when Mr McIntyre put to Mr Downey why was it that he had “grab hold” to which Mr Downey answered; “Well at that stage of the battle he had me covered so I pulled out” And when Mr McIntyre asked why he had eased, Mr Downey responded, “It was a lost battle, it was a nothing situation”.

[34] Mr Neal said that the Stewards submit that the evidence of Mr Green is totally credible and factual. There was no reason for him not to state what he had been told by Mr Downey which was that MEDLEY MOOSE had been interfered with and that this was a consequence of being Mr Butcher's action.

[35] Mr Neal submitted all drivers have a fundamental duty to answer all questions put to then by the Stipendiary Stewards honestly and without fear or favour. If they do not then this hinders the proper administration of harness racing. The Stewards contend that Mr Downey has not been truthful and has, on this occasion, given both false and misleading evidence to the Stewards. In this case Mr Downey was given ample opportunity to explain what really happened to him and MEDLEY MOOSE yet ultimately he elected not to do so.

[36] Finally, Mr Neal submitted that Stewards contend Mr Downey has not been truthful and has, on this occasion, given both false and misleading evidence to the Stewards. He summarised adding that Mr Downey’s evidence was misleading and inconsistent with the films. Mr Green’s evidence on what was said by Mr Downey on returning to the stables was also different from Mr Downey’s view and Mr Butcher admitted the breach and thus placed an onus on himself for driving carelessly and causing interference to Mr Downey.

Submissions for the Defendant

[37] Mr Lawson referred to the written submissions which he lodged prior to the hearing and reinforced a number of the key points.

[38] Mr Lawson referred to definitions of the ‘false’ and ‘misleading’ and said that the Committee must examine the responses from Mr Downey to see if in fact he did give false or misleading responses to Mr McIntyre's questioning. He referred to excerpts of the transcribed interviews of Mr Downey and submitted that there was absolutely nothing in those responses that go close to breaching this rule. Examples provided by Mr Lawson in support of this submission included:

Mr McIntyre asked "Why did you have to grab hold for." Mr Downey responded "well at that stage of the battle he had me covered so I pulled out". Mr McIntyre then asked "what was the reason you struck the pylon there". Mr Downey responded "he is a pretty big horse".

Mr Lawson submitted that during the interview the participants were Mr McIntyre, Mr Neal, Mr Downey and Mr Butcher. Mr Butcher was the person ultimately found at fault in this incident and the alleged offender, not Mr Downey. An explanation for Mr Downey's reserved or guarded responses is that also present was Mr Butcher and that made the atmosphere difficult for Mr Downey.

[39] Mr Lawson raised the question as to why Mr Downey was not interviewed separately. He said that Mr Downey was the first person interviewed and he was intimidated by the presence of Mr Butcher. As an analogy he raised to question of whether Police would question a suspect in the presence of witnesses.

[40] In response to Mr Green's evidence – he submitted that Mr Downey believes his words to Mr Green when he returned to the stable area were that he was “stuffed up by Butcher". The inference being that in Mr Butcher attacking his horse and taking the lead off him cost his horse the win. In other words he could not get away with a slightly slower section down the back to reserve the horse's energies. He submitted this explanation is different to Mr Green's interpretation of the comment – he added although the first response of Mr Green (on Page 3 of his transcribed interview) is stated as inaudible it surely casts some doubt on the value of that evidence. He said Mr Green's second response stating "well he said it was close, he had to settle his horse" seems much closer to what Mr Downey has stated.

[41] Mr Lawson submitted that the rule (relevant to this charge) refers to what Mr Downey said to the Stipendiary Stewards, not what he said to Mr Green. Mr Lawson said that under the Rules he can say what he likes to Mr Green – he cannot be convicted of what he did or did not say to Mr Green.

[42] Mr Lawson further submitted that he took issue with comments made by Mr Neal to Mr Green concerning alleged comments made by Mr Downey “......there was no interference. That his horse was completely at fault....” (Ref. P 5 transcript). Mr Lawson submitted Mr Downey never made any such comments.

[43] In relation to charge that Mr Butcher faced, Mr Lawson referred to a comment made by Mr McIntyre indicating it was at the low end of the scale of seriousness, and the JCA Committee hearing the charge (on the night) classifying the interference as minor and at the lower end of the scale of seriousness.

Summing up for the Informant

[44] In summing up for the Informant and in response to the Defendant's submissions Mr Neal submitted that the only reason Mr Downey took hold of his horse was because Mr Butcher crossed over.

[45] He rejected Mr Lawson’s concerns about Mr Downey being interviewed in the presence of Mr Butcher, adding that Stewards would never get their job done if participants were interviewed separately. He submitted that the suggestion Mr Butcher as a senior driver and could have intimidated Mr Downey is nonsense and Stewards do not accept Mr Lawson’s concern on this point.

[46]  In closing Mr Neal submitted that the thrust of Mr Green's evidence is clear, and at odds with Mr Downey. The video films of the incident near the 700 metre mark clearly indicate why Mr Downey had to ease his horse, and anyone with limited knowledge of racing would know why Mr Downey eased.

Summing up for the Defendant

[47] In summing up for the Defendant Mr Lawson referred to his written submissions, the relevant parts of which are summarised as follows:

a) The breach is a serious racing offence; therefore the standard of proof is high.

b) The JCA penalty guide establishes a mid-range point for a breach of this rule at 6 months disqualification, therefore the JCA (sic Committee) must be convinced beyond any doubt.

c) The respondent’s evidence in this case was guarded and reserved but not misleading or false.

d) Mr Downey answered the questions put to him by Mr McIntyre in a truthful manner without incriminating any other horseman.

e) Mr Downey was intimidated to an extent with Mr Butcher also in the interview room with him and that caused the reserved and guarded response.

f) Comments made to Mr Green by Mr Downey are hearsay and reflect Mr Green’s interpretation.

g) The racing incident was of an extremely minor nature – Mr Downey’s horse ran second in the race, and the incident had no bearing on its placing.

h) Mr McIntyre classed it as minor interference and at the low end of the scale of seriousness.

i) Mr Downey does not believe he gave false or misleading evidence and the Committee should find him not guilty of this offence.

Reasons for Decision

[48] As a starting point the Committee responds to some matters raised in submissions by both the Informant and Defendant that we feel require clarification.

[49] Mr Lawson submitted that there is no responsibility for any horseman to allege that any other horseman has breached any rules.

The Committee's view on this point is that Rule 872 (which relate to the running of the race) does place an onus and obligation on a driver to report certain incidents that occur in a race. Rule 872 provides that:

If an accident or interference occurs during the running of the race every horseman concerned therein or directly affected thereby shall, unless incapacitated, immediately after the race report the matter to the Stipendiary Stewards who shall thereupon, if they think it necessary, conduct an investigation into the cause of the accident or interference and take such further action permitted by these Rules.

In relation to the running of the race relevant to this charge, the Committee finds that there was interference and Mr Downey for his part in the incident did have an obligation under this rule to report the matter to investigating Stipendiary Stewards.

[50] It is Mr Lawson’s submission that comments made by Mr Downey to Mr Green and passed on to Mr McIntyre is not relevant as they are hearsay. The Committee's view is that anything said by Mr Downey to a third party, particularly what he said to Mr Green, is both relevant and is admissible.

[51] Mr Lawson submitted that Mr Downey felt intimidated being interviewed in the presence of others including Mr Butcher and this perhaps may have caused him to provide reserved or guarded answers to Stewards' questions. On the other hand Mr Neal rejected this suggestion, adding that Stewards would be unable to get their job done if they were required to interview suspected drivers separately from witnesses.

[52] The Committee consider that Mr Lawson’s concerns do have some merit, and we believe as a matter of good practice it is desirable that interviews of witnesses and suspects in most circumstances ought to be carried out separately, with limited exceptions, such as unavoidable and unplanned situations. However, we do note in this case that Mr Downey was questioned separately during his second interview, and at no stage did he raise any concerns about having been intimidated during the first interview. Nor did he deviate from or seek to correct responses previously supplied, in fact the Committee believes that he continued to prevaricate.

[53] Further, our assessment of the answers provided by Mr Downey were not necessarily indicative of someone who was being intimidated, rather we believe that his responses, to at least some of the questions, were evasive and misleading, particularly given his obligation under the Rules to report interference to Stewards. The primary purpose of the Stewards' inquiry following the race, given the circumstances and the available video footage of the incident ought to have been plainly clear to Mr Downey.

[54] The Committee has assessed the evidence, including the testimony of Mr Muirhead, the interviews of Mr Green and Mr Downey and the detailed submissions presented by Mr Neal and Mr Lawson.

[55] The Committee is of the opinion that the video footage is very clear, and we are in no doubt that MEDLEY MOOSE was checked and had to be eased as a result of being cut off by HOT MACH. This is in conflict with what Mr Downey told Stewards.

[56] The Committee has assessed the evidence of Mr Green in relation to his conversation with Mr Downey. Mr Green said that he had to take hold of his horse because the other guy cut him off. This is at odds with what Mr Downey told Stewards. On this point we prefer Mr Green’s evidence as he has nothing to gain by telling Stewards anything other than what he could best recall.

[57] Mr Downey’s various explanations as to what occurred were not only, as he put it reserved and guarded, but in our view misleading. It was made quite clear to Mr Downey at the outset of the second interview by Mr McIntyre that Stewards were concerned that he had not portioned any blame onto Mr Butcher for the incident, and rather than telling Stewards the real reason for MEDLEY MOOSE being checked he chose not to recant. We believe that this was deliberate and not by mistake.

[58] On that basis having carefully weighed up all the evidence we find that Mr Downey did wilfully supply misleading information to Stewards concerning the incident which caused his drive, MEDLEY MOOSE to be checked and eased.

Decision

[59] The Committee finds the charge proved to the requisite standard.

Submissions for Penalty

[60] The Committee invites the Informant and Defendant to lodge penalty submissions.

[61] Submissions are to be lodged with the Office of the Judicial Control Authority within one week of receipt of this decision.

G R Jones         Chair

B Scott             Committee Member

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