Non Raceday Inquiry – 8 December 2011 – Decision on Penalty and Costs dated 10 April 2012
ID: JCA13941
Decision:
HRNZ v RJ MACKENZIE
Hearing before Non Raceday Judicial Committee
Judicial Committee: BJ Scott (Chairman), AJ Dooley (Committee Member)
Counsel: Mr MD Branch - Counsel for HRNZ, Mr W Dollimore - Counsel for Mr Mackenzie
DECISION OF JUDICIAL COMMITTEE ON PENALTY AND COSTS
1. Introduction:
1.1 On the 26th of January 2012 we delivered our Decision on a charge brought against Mr MacKenzie pursuant to Rules 1004(1) and 1004(2) of the NZ Rules of Harness Racing in that on the 1st day of March 2011 at Alexandra Park he was the Trainer and the Person in Charge of the horse AVRILS QUEST which was presented to race in a Qualifying Trial at a Race Meeting conducted by the Kumeu Trotting Club and the said horse was found to have administered to it a drug namely Phenylbutazone.
1.2 At a Hearing on the 18th of March 2011 the Judicial Committee appointed for the purpose had heard that part of the charge relating to the positive test returned by AVRILS QUEST. Mr MacKenzie was present at that Hearing and he conceded to AVRILS QUEST being disqualified pursuant to Rule 1004(8) from the Qualifying Trial and he wished that disqualification to take effect from the 18th of March 2011. At that Hearing Mr MacKenzie acknowledged that he consented to the disqualification of AVRILS QUEST immediately so that he could then requalify the horse in the near future and then he would be able to race it.
1.3 Mr MacKenzie at the time of the Hearing on the 18th of March 2011 reserved his right to defend the charges against him and he recorded that on the Information.
1.4 A preliminary Hearing into the charge against Mr MacKenzie was held on the 13th of October 2011 and this was referred to in our Decision of the 26th of January 2012.
1.5 At the substantive Hearing of the charge against Mr MacKenzie held on the 8th of December 2011 this Committee found that Mr MacKenzie was at all relevant times the Trainer of AVERILS QUEST and as such the provisions of Rule 1004(2) were satisfied. This Committee found the charge against Mr MacKenzie proven.
1.6 The parties were asked to make written submissions as to penalty and costs.
2. Submissions by Mr Branch
2.1 In his written submissions to us Mr Branch referred to seven previous Decisions involving various substances but one Decision HRNZ v D involved Phenylbutazone.
2.2 Mr Branch noted that all but two of the previous cases referred to by him involved drug negligence which was the basis for the charge against Mr MacKenzie.
2.3 He submitted that the decision of HRNZ v K was the most similar to the situation in the present case because of the following facts which were recorded in the Decision:
(a) Mr K appeared quite dumbfounded and was not able to explain how the positive swab occurred. A window of opportunity for someone to administer something to M did occur at the racecourse when K left the horse unattended for 20-30 minutes while he went for a meal.
(b) At the racecourse, Mr K did not use his allocated horse stalls but, instead, used an open yard for the horse. This allowed the horses to walk around after the float trip.
(c) Mr K has never used the product containing Lignocaine and his veterinarians have never used the produce for the horse M. Mr K’s accounts do not reveal the use of Lignocaine.
Mr K explained to the Committee his reasons for denying the breach of the rules and explained that he did not mean any “disrespect” to the Harness Racing Industry in doing so. He said he could not accept that he was guilty of taking the horse to the races with the prohibited substance in its system. He was “baffled” as to how the horse had come to have the substance in its system.
(d) Mr K accepted the statement of facts when it was presented to him and this meant it was not necessary to call witnesses.
2.4 Mr Branch submitted in respect to the present case as follows:
(a) There is no evidence as to how this drug could have found its way into the horse’s system and accordingly no view can be reached on the level of negligence apart from a probable inference that it resulted from lack of adequate measures being taken at Mr MacKenzie’s stables or at the racecourse.
(b) In this case, there was not a guilty plea (in relation to Mr MacKenzie’s personal liability) at the earliest opportunity and indeed no guilty plea at all. Accordingly, that significant mitigating factor is not available to Mr MacKenzie.
(c) It is acknowledged that in NZGRA v S (recent greyhound decision), the Trainer was fined $3,000.00. However, it is submitted that generally (possibly because of the relative returns available) greyhound penalties are lower than that of Harness. Accordingly, the K Decision remains the most relevant Decision.
(d) In all the circumstances, he submitted that the minimum fine that should be imposed is $4,000.00. For the avoidance of doubt, no period of disqualification or suspension was sought by the Informant.
2.5 In respect to costs Mr Branch submitted:
(a) Mr Mackenzie’s decision to challenge the finding that there had been a breach of Rule 1004(1) has had significant costs consequences for the Informant. In particular, the detailed and extensive request for disclosure necessitated the Informant engaging Counsel. Further, the abuse of process point was raised by letter dated the 3rd of October 2011 with Mr MacKenzie’s Counsel soon after the Informant’s Counsel had been appointed.
(b) The letter of 3rd October 2011 was simply ignored, so the Informant had no choice but to proceed to a full defended Hearing. The Informant succeeded at that Hearing and costs were reserved.
(c) The Informant was then put to the cost of preparing for a defended Hearing which included preparation of Mr Carmichael’s evidence. All of this when the sole issue, as accepted by the Tribunal, was whether Mr MacKenzie was the Trainer of the horse.
(d) In summary, it is respectfully submitted that the Informant’s costs were completely unnecessary as once there had been a finding in relation to Rule 1004(1); it was a foregone conclusion that Mr MacKenzie was guilty of an offence under Rule 1004(1) sub-rule (2) or (3).
(e) The costs charged to the Informant up until today are $6,721.26. This fee represents something less than the actual time spent on the file.
(f) A party is entitled to require the Informant to make out the charge. However, that party must be prepared to meet costs caused by arguments that lack merit. The High Court Rules (remembering this matter is civil in nature) specifically set out the types of conduct which will attract increased costs. In particular:
14.6 Increased costs and indemnity costs
(1) Despite Rules 14.2 to 14.5, the Court may make an order –
(a) increasing costs otherwise payable under those rules (increased costs); or
(b) that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (Indemnity costs).]
(2) The court may make the order at any stage of a proceeding and in relation to any step in it.
(3) The court may order a party to pay increased costs if –
(a) the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by –
(i) failing to comply with these rules or with a direction of the court; or
(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument.
2.6 In all the circumstances, the Informant seeks a contribution of 80% to its costs. This is a costs award of $5,377.00.
3. Submissions by Mr Dollimore
3.1 In his submissions Mr Dollimore provided written submissions although in his written submissions he stated that his Memorandum was in addition to oral submissions that he would make at a Penalty Hearing.
The purpose of this Committee calling for written submissions was to firstly give the parties time to properly prepare and submit submissions in writing. In this regard the Informant was required to provide its submissions first and Mr MacKenzie then had the opportunity to respond to those submissions and make submissions of his own. The second purpose for requiring written submissions was to reduce the costs in what had unnecessarily become an elongated process which had already involved two Hearings.
The Committee therefore acting pursuant to the provisions of Rules 1101 and in particular 1101(3) and 1102(3) resolved that the question of penalty and costs should be dealt with by written submissions.
3.2 Mr Dollimore in his submissions then referred to the chronology of events that took place firstly on or around the Hearing of the 18th of March 2011 and secondly leading up to the Hearings in October 2011 and December 2011. In our Decision of the 26th of January 2012 we set out the essential chronology of events.
3.3 Mr Dollimore in his further submissions referred to the procedures adopted and conducted by the Informant. It would appear that Mr Dollimore is suggesting that the Informant did not need to appoint Counsel even though Mr MacKenzie had done so. Mr Dollimore seemed to suggest that this caused the investigative process to take longer and that it gave rise to the need for the October Hearing.
3.4 In his submission Mr Dollimore stated “The Informant sought a ruling from the Judicial Control Authority based on the document of estoppel. This was an application made by Mr Branch for the first time. It was not a joint application. This required a Hearing at the Cambridge Raceway.
3.5 Mr Dollimore in his submissions said that the procedures adopted by the Informant were wrong and caused unnecessary legal argument which was not the fault of the Defendant. He further said that the delays and the change in positioning of the Informant, the change of Counsel and the complete change in direction was attributable to the procedures that the Informant had invoked. He further went on to say that in his submission the procedure was plainly unfair and he respectfully submitted that the Informant was the author of the delays in litigation in this case.
3.6 In respect to the procedure, Mr Dollimore made the following submissions:
(a) Counsel refers the Committee to the Judicial Control Authority Guidelines for Judicial Committees, Natural Justice, page 11:
“Essential elements of the principles of natural justice that Judicial Committees must always observe include the following: The right of a person charged to be heard. In order for this principle to be observed, a person must be adequately informed of the charge brought against him or her before being called upon to answer it. That requires a person to be given notice of the charge and time to consider or prepare an answer before the hearing commences. The form of notice and the amount of time will vary depending on the seriousness of the charge and the overall circumstances. For example, when the proceeding is commenced and heard during a race meeting the form of notice will usually not need to be more than the Information and the amount of time to prepare for the hearing may be quite short.
This principle also means that people charged with breaches of the Rules must hear, or have access to, all the allegations and evidence brought against them and all the material that the Judicial Committee will consider in its entirety”.
(b) Sadly, for Mr MacKenzie, that wasn’t the case in this Hearing, certainly in respect of the preliminary Hearing on the 18th of March 2011.
(c) The relevant principles of sentencing for Judicial Control Authorities, Counsel submits are as follows:
(i) Penalties not to be increased because charge defended
Counsel refers the Judicial Committee to the penalty guide, page 6:
“Penalty not to be increased because charge defended. Defending or denying a charge that is found proven can never be regarded as an aggravating factor and penalties must never be increased simply because a person chooses to deny even a blatantly obvious breach of the rules. Penalties must not be disproportionate to the breach being punished while penalties should contain a deterrent element, they should not be excessive or oppressive”.
(ii) The Rules require that Judicial Committees must take account of the following matters relevant to fixing penalties
• The status of the race.
• The stake payable for a race.
• Any consequential effects upon any person or horses as a result of the breach of the Rules.
• The need to maintain integrity and public confidence in the Harness Racing.
These mandatory matters must always be considered and reflected in any penalty
The Informant has filed submissions on penalty. At no stage in his submissions has he referred to these mandatory features. This was a QUALIFYING TRIAL, not a totalisator race, not a stake bearing race. The Informant’s Counsel has failed to address this issue.
The race that is subject to this matter is a qualifying trial before a race meeting has commenced. There were no stakes, there was no issue of the status of the race and there were no consequential effects upon any third party or horse as a result of the breach of the Rules. No disqualification that has resulted in consequences to third parties and horses applies in this case. This is the lowest level of breach.
It is noteworthy that the Informant’s Counsel has provided no cases which relate to a trial as distinct from a totalisator race or a race bearing stakes. There is a huge distinction between a trial and a race day breach of this Rule which is subject to stakes and most importantly, betting by the general public. The Informant has provided no cases which relate to a breach of this Rule in respect of a trial. This is an important distinguishing feature. None of the cases that the Informant refers to relate to trials. They all relate to breaches of the Rule in the context of a totalisator race and a stake bearing race and in some cases status races.
Accordingly, a Judicial Control Authority Committee must consider the status of the race; here it is a trial, non-totalisator. It must consider the stakes payable for racing; here there are no stakes. Any consequential effects upon any person or horses as a result of the breach of the Rules; there are no changes to placings by virtue of disqualification and changes in stakes, no third party is affected. Because it was a non-totalisator race the need to maintain the integrity and public confidence in harness racing needs to be also considered.
3.6 In respect to previous Decisions, Mr Dollimore submitted as follows:
(a) The facts of HRNZ v K were not similar to the present case.
(b) In the Decision HRNZ v D the only similarity was that the subject drug was Phenylbutazone. He submitted that the facts in that case were far more serious than the position as far a Mr MacKenzie was concerned and he noted that in that case Mr Carmichael submitted that a fine was appropriate. Mr Dollimore referred to a paragraph in that Decision where the Chairman said:
“The Committee has also given due weight to the status and stake of the race in which R finished in third place. We have also given considerable thought to the need to maintain integrity and public confidence in Harness Racing as well as the need for consistency in decision making.” A fine of $1,800.00 was imposed.
(c) Mr Dollimore referred to a Decision of H although we were not provided with a copy of that Decision.
(d) Mr Dollimore then referred to the Decision of HRNZ v P. He submitted that the aggravating features in that case were far more serious than in the present case in that it involved a horse winning a race and that there was a high degree of negligence by the Defendant in that case. He also referred to a notice being given by the Chief Stipendiary Steward Mr George in relation to drug testing and the fact that the RIU would be seeking increased penalties for “any person charged for positive swabs”. Mr Dollimore noted that that notice was issued after the breach by Mr P and he also said that the notice was given after the breach by Mr MacKenzie.
In respect to that Decision he referred to a paragraph from the Decision which stated:
“A further significant issue is that persons investing on the race were unaware that one horse in the race was obtaining an advantage through competing when having been treated with a prohibited substance. The integrity of Harness Racing can legitimately be questioned in these circumstances. The penalty we impose has to reflect this fact. The Defendant’s carelessness needs to be denounced and he must be held accountable”.
That aggravating feature does not apply to Mr MacKenzie because it was a trial.
3.7 Mr Dollimore submitted that a fine in the region of $300.00 to $450.00 was appropriate.
3.8 In respect to costs, Mr Dollimore submitted that costs were strongly opposed in this case. He again referred to the procedure involved in firstly the initial Hearing and then the subsequent two Hearings. He suggested that the reasons for what he perceived to be all of the procedural problems and all of the delays were caused solely by the Informant.
He referred the Committee to a High Court Decision of CD Allen v NZ Police in 1998. In that Decision Mr Justice Giles stated as follows:
(a) But it cannot be right to place the onus on the defence to seek an adjournment to enable the prosecutor to discharge his/her duty; neither can it be right to require a defendant to proceed to trial with the obvious risks of so doing when disclosure has been sought and refused. If, upon a timely request the prosecution elects not to respond, then, in my view, there are fatal consequences for the prosecutor since, in most cases, a ground for dismissal for abuse of process or prejudice to the process of a fair trial will have been per se established. The abuse lies in deliberate failure/refusal to supply; the prejudice lies in denial of the ability to assess the history and reliability of the device in order to determine whether there is a defence point open to be taken. I do not see the issue as one of discipline; rather one of fairness.
(b)
(i) If, at the date of trial, the prosecution has failed to comply with a legitimate defence request for pre-trial discovery and the prosecutor seeks an adjournment in order to comply and has an acceptable explanation for the default, it will be open to the Judge to grant that application provided there are no other implications which militate against that course (e.g. s.25 NZ Bill of Rights Act 1990).
(ii) If, at the date of trial, the prosecution has failed to comply with a legitimate defence request for pre-trial discovery, and, if the prosecutor has no satisfactory explanation for the failure to comply, the Judge will be entitled to dismiss the information for abuse of process.
(iii) If the prosecutor proceeds to a hearing and the defence establishes a failure to comply with a proper request for relevant pre-trial discovery, the defence will be entitled to a dismissal for abuse of process.
3.9 Mr Dollimore submitted that this was a routine, straightforward matter. At the substantive Hearing essentially a pre-prepared Statement of Facts was read by Mr Carmichael. The only witness called was Mr Carmichael, the Racecourse Inspector and it was a half day Haring. The only costs that should be ordered are JCA costs that relate to the substantive Hearing which was a half day Hearing on a race day. It is not for the Informant to seek costs.
3.10 He further submitted that the Informant’s costs are outrageous and are challenged. It is respectfully submitted there was no jurisdiction to make a costs order as submitted by Mr Branch. Mr Branch refers to the High Court Rules which in Counsel’s submission have no application to this Hearing.
3.11 He also submitted the actions and the procedures followed by the Informant are relevant when determining costs. The only costs that should be awarded relate to the JCA costs. Accordingly, any costs application by the Informant is strongly opposed.
4. Reasons for Penalty
4.1 In arriving at penalty this Committee has found that this has been a charge under the “Drug Negligence Rule”. This indeed was always the Informant’s position.
4.2 The Committee does not question Mr MacKenzie’s integrity and as a Trainer of some 30 years experience, there is clearly embarrassment for him in having a “drugs charge” albeit a drug negligence charge proven against him.
4.3 There was never any suggestion of deliberate administration even though Mr Dollimore referred to this extensively at the Hearing and in his submissions and the facts were not there to support a charge of deliberate administration. The facts are however that AVERILS QUEST returned a positive test to Phenylbutazone following a qualifying trial and as the Trainer and person in charge of AVERILS QUEST at all relevant times; Mr MacKenzie was in breach of Rule 1004.
4.4 Rule 1004(7) provides for the following penalties:
(a) A fine not exceeding $20,000.00 and/or the person to be disqualified or suspended from holding or obtaining a license for any specific period not exceeding five years.
4.5 The Integrity of Racing is paramount and all participants in the Racing Industry need to always be aware of this. An industry that is reliant upon the gambling dollar needs to always uphold its integrity to retain the Public’s confidence.
4.6 Regardless of how they got there the existence of drugs in a horse in a race attacks the very core of this integrity.
4.7 Mr Dollimore has in his submissions told us that we should take the status of the race into account, i.e. that it was a qualifying trial rather than an actual race. We have done this. He further tells us in his submissions that there are no consequential effects upon any person or horses as a result of the breach of the Rules and that no third party is affected. We totally disagree with that submission. There is in our view a need for a level playing field in all areas of racing, including qualifying trials. Horses running in qualifying trials need to be drug free just as they would be in races.
4.8 This Committee is well aware of the sentencing principles set out in previous cases in NZTR v P and NZTR v C. A penalty for deliberate administration will obviously be greater than that imposed in the case of negligence and indeed there are degrees of negligence. Penalties imposed for negligence need to be of sufficient level to make other trainers look at their operations and take all proper steps to ensure that a negligent administration does not occur.
4.9 In arriving at penalty we have reviewed the prior Decisions submitted to us by both Mr Branch and Mr Dollimore. We believe that (notwithstanding the submissions by Mr Dollimore) that the Decision in HRNZ v K is very relevant. In that case Mr K was charged under the Drug Negligence Rules and he, like Mr MacKenzie, defended the charge. In that case when he was presented with the Summary of Facts, Mr K accepted the facts and thereby avoided the necessity for the Informant to call witnesses or to have an extended Hearing. That was not the situation in this case. Mr K was fine the sum of $4,000.00.
4.10 In HRNZ v D, as we have previously said, this involved the same drug as in the present case. Mr D admitted the charge which was one under the Drug Negligence Rule and was fined the sum of $1,800.00.
4.11 In HRNZ v P the drug was Clenbuterol and that charge was admitted and the Committee imposed a fine of $3,000.00.
4.12 In the end result Mr MacKenzie acknowledged in the Hearing the presence of Phenylbutazone on his property although many months prior to AVERILS QUEST’S qualifying trial. He told of the strict security procedures that he took at his stables but having said that AVERILS QUEST did return a positive test to Phenylbutazone. This was notwithstanding the precautions that Mr MacKenzie tells us that he had taken and also his excellent record.
4.13 In arriving at penalty we would stress that Mr McKenzie is not being penalised for defending the charge (every person has the right to defend any charge) but he cannot be given credit for defending a charge where there has been an obvious breach of the provisions of Rule 1004.
4.14 There have been a range of fines imposed in prior Decisions referred to us and in other Decisions under the Drug Negligence Rule that we are aware of. Mr Branch has asked for a fine of $4,000.00 which was the same as the fine imposed in HRNZ v K. We believe that Mr McKenzie’s negligence was less than that of Mr K and therefore such level of fine is not appropriate. Mr Dollimore has on the other hand suggested a fine of $300.00 to $450.00. We think that is totally inadequate. Mr McKenzie has provided two character references to us and we have taken his record into account. We record, however, that at no stage has he acknowledged what is to us a clear breach of Rule 1004. In assessing penalty therefore we believe a fine of $2,000.00 is appropriate.
5. Reasons for Costs
5.1 Mr Branch has submitted to us that this was a clear breach of Rule 1004 and that Mr MacKenzie and his Counsel have unnecessarily delayed the proceedings to the extent that it involved several teleconferences and two substantive Hearings. He seeks an order for 80% of the actual costs that have been charged to the RIU.
5.2 Mr Dollimore for his part places all the blame for the procedural difficulties (as he saw them) and the delays on the Informant. He tells us among other things that “the Informant sought a ruling from the Judicial Control Authority based on the doctrine of estoppel. This was an application made by Mr Branch for the first time. It was not a joint application and required a Hearing at the Cambridge Raceway.”
5.3 We not only totally disagree with that submission but in fact it is our view that the delays were caused by Mr MacKenzie and his Counsel in not cooperating in what should have been a relatively straight forward Hearing. The October Hearing arose from a teleconference between Counsel for both parties and the Committee and arose from Mr Dollimore’s request for not only further disclosure but also to question the evidential basis on which the Informant was proceeding. It transpired that Mr Dollimore wanted, among other things, to have a rehearing of the original Hearing on the 18th of March 2011 at which AVERILS QUEST was disqualified from the qualifying trial. This was despite the fact that Mr McKenzie at the time accepted that his horse had a positive test and he consented to it being disqualified from the Trial. Mr Branch raised the doctrine of issue estoppel and Abuse of Process at the October Hearing and made submissions in support of that. The Committee quite clearly found that there was issue estoppel and that to reopen and rehear the charge dealt with on the 18th of March 2011 would be an Abuse of Process.
5.4 There have been a myriad of submissions made by Mr Dollimore on behalf of his Client at the October Hearing, the December Hearing and in the submissions as to penalty and costs. There has however been very little (if any) evidence put forward on behalf of Mr MacKenzie.
5.5 We have referred to the Decision of HRNZ v K in which Mr K accepted the Statement of Facts once presented to him. Mr MacKenzie did not do so when clearly his horse returned a positive test and he was the Trainer and person in charge of that horse at all relevant times. The responsibility for the elongated process and the two Hearings, in our view, lies with Mr MacKenzie and any award of costs should reflect this.
Mr Dollimore has in his submissions made reference to this Committee being different to that on the 18th March 2011. The composition of the Committee had to change because of the unfortunate passing of Mr Rowe. The power to appoint Judicial Committees is given to the Judicial Control Authority pursuant to Section 39 of the Racing Act 2003. Clause 16 of Schedule 3 of that Act also authorises the Chairperson or other member of the Judicial Control Authority to replace a member of the Judicial Committee. This was a separate hearing into the charge against Mr McKenzie and accordingly a new Committee was appointed. It is also relevant to note that any reference to the membership of the Committee was aft
Penalty:
6. Decision as to Penalty and Costs
6.1 For the reasons set out above, this Committee makes the following Orders:
(a) That Mr MacKenzie is to pay a fine in the sum of $2,000.00.
(b) That Mr MacKenzie pays costs to the Racing Integrity Unit in the amount of $4,704.89.
(c) That Mr MacKenzie pays costs to the Judicial Control Authority in the amount of $2,229.13.
Dated this 10th day of April 2012.
BJ Scott AJ Dooley
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 18/04/2012
Publish Date: 18/04/2012
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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startdate: no date provided
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decisiondate: 18/04/2012
hearing_title: Non Raceday Inquiry - 8 December 2011 - Decision on Penalty and Costs dated 10 April 2012
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
HRNZ v RJ MACKENZIE
Hearing before Non Raceday Judicial Committee
Judicial Committee: BJ Scott (Chairman), AJ Dooley (Committee Member)
Counsel: Mr MD Branch - Counsel for HRNZ, Mr W Dollimore - Counsel for Mr Mackenzie
DECISION OF JUDICIAL COMMITTEE ON PENALTY AND COSTS
1. Introduction:
1.1 On the 26th of January 2012 we delivered our Decision on a charge brought against Mr MacKenzie pursuant to Rules 1004(1) and 1004(2) of the NZ Rules of Harness Racing in that on the 1st day of March 2011 at Alexandra Park he was the Trainer and the Person in Charge of the horse AVRILS QUEST which was presented to race in a Qualifying Trial at a Race Meeting conducted by the Kumeu Trotting Club and the said horse was found to have administered to it a drug namely Phenylbutazone.
1.2 At a Hearing on the 18th of March 2011 the Judicial Committee appointed for the purpose had heard that part of the charge relating to the positive test returned by AVRILS QUEST. Mr MacKenzie was present at that Hearing and he conceded to AVRILS QUEST being disqualified pursuant to Rule 1004(8) from the Qualifying Trial and he wished that disqualification to take effect from the 18th of March 2011. At that Hearing Mr MacKenzie acknowledged that he consented to the disqualification of AVRILS QUEST immediately so that he could then requalify the horse in the near future and then he would be able to race it.
1.3 Mr MacKenzie at the time of the Hearing on the 18th of March 2011 reserved his right to defend the charges against him and he recorded that on the Information.
1.4 A preliminary Hearing into the charge against Mr MacKenzie was held on the 13th of October 2011 and this was referred to in our Decision of the 26th of January 2012.
1.5 At the substantive Hearing of the charge against Mr MacKenzie held on the 8th of December 2011 this Committee found that Mr MacKenzie was at all relevant times the Trainer of AVERILS QUEST and as such the provisions of Rule 1004(2) were satisfied. This Committee found the charge against Mr MacKenzie proven.
1.6 The parties were asked to make written submissions as to penalty and costs.
2. Submissions by Mr Branch
2.1 In his written submissions to us Mr Branch referred to seven previous Decisions involving various substances but one Decision HRNZ v D involved Phenylbutazone.
2.2 Mr Branch noted that all but two of the previous cases referred to by him involved drug negligence which was the basis for the charge against Mr MacKenzie.
2.3 He submitted that the decision of HRNZ v K was the most similar to the situation in the present case because of the following facts which were recorded in the Decision:
(a) Mr K appeared quite dumbfounded and was not able to explain how the positive swab occurred. A window of opportunity for someone to administer something to M did occur at the racecourse when K left the horse unattended for 20-30 minutes while he went for a meal.
(b) At the racecourse, Mr K did not use his allocated horse stalls but, instead, used an open yard for the horse. This allowed the horses to walk around after the float trip.
(c) Mr K has never used the product containing Lignocaine and his veterinarians have never used the produce for the horse M. Mr K’s accounts do not reveal the use of Lignocaine.
Mr K explained to the Committee his reasons for denying the breach of the rules and explained that he did not mean any “disrespect” to the Harness Racing Industry in doing so. He said he could not accept that he was guilty of taking the horse to the races with the prohibited substance in its system. He was “baffled” as to how the horse had come to have the substance in its system.
(d) Mr K accepted the statement of facts when it was presented to him and this meant it was not necessary to call witnesses.
2.4 Mr Branch submitted in respect to the present case as follows:
(a) There is no evidence as to how this drug could have found its way into the horse’s system and accordingly no view can be reached on the level of negligence apart from a probable inference that it resulted from lack of adequate measures being taken at Mr MacKenzie’s stables or at the racecourse.
(b) In this case, there was not a guilty plea (in relation to Mr MacKenzie’s personal liability) at the earliest opportunity and indeed no guilty plea at all. Accordingly, that significant mitigating factor is not available to Mr MacKenzie.
(c) It is acknowledged that in NZGRA v S (recent greyhound decision), the Trainer was fined $3,000.00. However, it is submitted that generally (possibly because of the relative returns available) greyhound penalties are lower than that of Harness. Accordingly, the K Decision remains the most relevant Decision.
(d) In all the circumstances, he submitted that the minimum fine that should be imposed is $4,000.00. For the avoidance of doubt, no period of disqualification or suspension was sought by the Informant.
2.5 In respect to costs Mr Branch submitted:
(a) Mr Mackenzie’s decision to challenge the finding that there had been a breach of Rule 1004(1) has had significant costs consequences for the Informant. In particular, the detailed and extensive request for disclosure necessitated the Informant engaging Counsel. Further, the abuse of process point was raised by letter dated the 3rd of October 2011 with Mr MacKenzie’s Counsel soon after the Informant’s Counsel had been appointed.
(b) The letter of 3rd October 2011 was simply ignored, so the Informant had no choice but to proceed to a full defended Hearing. The Informant succeeded at that Hearing and costs were reserved.
(c) The Informant was then put to the cost of preparing for a defended Hearing which included preparation of Mr Carmichael’s evidence. All of this when the sole issue, as accepted by the Tribunal, was whether Mr MacKenzie was the Trainer of the horse.
(d) In summary, it is respectfully submitted that the Informant’s costs were completely unnecessary as once there had been a finding in relation to Rule 1004(1); it was a foregone conclusion that Mr MacKenzie was guilty of an offence under Rule 1004(1) sub-rule (2) or (3).
(e) The costs charged to the Informant up until today are $6,721.26. This fee represents something less than the actual time spent on the file.
(f) A party is entitled to require the Informant to make out the charge. However, that party must be prepared to meet costs caused by arguments that lack merit. The High Court Rules (remembering this matter is civil in nature) specifically set out the types of conduct which will attract increased costs. In particular:
14.6 Increased costs and indemnity costs
(1) Despite Rules 14.2 to 14.5, the Court may make an order –
(a) increasing costs otherwise payable under those rules (increased costs); or
(b) that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (Indemnity costs).]
(2) The court may make the order at any stage of a proceeding and in relation to any step in it.
(3) The court may order a party to pay increased costs if –
(a) the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by –
(i) failing to comply with these rules or with a direction of the court; or
(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument.
2.6 In all the circumstances, the Informant seeks a contribution of 80% to its costs. This is a costs award of $5,377.00.
3. Submissions by Mr Dollimore
3.1 In his submissions Mr Dollimore provided written submissions although in his written submissions he stated that his Memorandum was in addition to oral submissions that he would make at a Penalty Hearing.
The purpose of this Committee calling for written submissions was to firstly give the parties time to properly prepare and submit submissions in writing. In this regard the Informant was required to provide its submissions first and Mr MacKenzie then had the opportunity to respond to those submissions and make submissions of his own. The second purpose for requiring written submissions was to reduce the costs in what had unnecessarily become an elongated process which had already involved two Hearings.
The Committee therefore acting pursuant to the provisions of Rules 1101 and in particular 1101(3) and 1102(3) resolved that the question of penalty and costs should be dealt with by written submissions.
3.2 Mr Dollimore in his submissions then referred to the chronology of events that took place firstly on or around the Hearing of the 18th of March 2011 and secondly leading up to the Hearings in October 2011 and December 2011. In our Decision of the 26th of January 2012 we set out the essential chronology of events.
3.3 Mr Dollimore in his further submissions referred to the procedures adopted and conducted by the Informant. It would appear that Mr Dollimore is suggesting that the Informant did not need to appoint Counsel even though Mr MacKenzie had done so. Mr Dollimore seemed to suggest that this caused the investigative process to take longer and that it gave rise to the need for the October Hearing.
3.4 In his submission Mr Dollimore stated “The Informant sought a ruling from the Judicial Control Authority based on the document of estoppel. This was an application made by Mr Branch for the first time. It was not a joint application. This required a Hearing at the Cambridge Raceway.
3.5 Mr Dollimore in his submissions said that the procedures adopted by the Informant were wrong and caused unnecessary legal argument which was not the fault of the Defendant. He further said that the delays and the change in positioning of the Informant, the change of Counsel and the complete change in direction was attributable to the procedures that the Informant had invoked. He further went on to say that in his submission the procedure was plainly unfair and he respectfully submitted that the Informant was the author of the delays in litigation in this case.
3.6 In respect to the procedure, Mr Dollimore made the following submissions:
(a) Counsel refers the Committee to the Judicial Control Authority Guidelines for Judicial Committees, Natural Justice, page 11:
“Essential elements of the principles of natural justice that Judicial Committees must always observe include the following: The right of a person charged to be heard. In order for this principle to be observed, a person must be adequately informed of the charge brought against him or her before being called upon to answer it. That requires a person to be given notice of the charge and time to consider or prepare an answer before the hearing commences. The form of notice and the amount of time will vary depending on the seriousness of the charge and the overall circumstances. For example, when the proceeding is commenced and heard during a race meeting the form of notice will usually not need to be more than the Information and the amount of time to prepare for the hearing may be quite short.
This principle also means that people charged with breaches of the Rules must hear, or have access to, all the allegations and evidence brought against them and all the material that the Judicial Committee will consider in its entirety”.
(b) Sadly, for Mr MacKenzie, that wasn’t the case in this Hearing, certainly in respect of the preliminary Hearing on the 18th of March 2011.
(c) The relevant principles of sentencing for Judicial Control Authorities, Counsel submits are as follows:
(i) Penalties not to be increased because charge defended
Counsel refers the Judicial Committee to the penalty guide, page 6:
“Penalty not to be increased because charge defended. Defending or denying a charge that is found proven can never be regarded as an aggravating factor and penalties must never be increased simply because a person chooses to deny even a blatantly obvious breach of the rules. Penalties must not be disproportionate to the breach being punished while penalties should contain a deterrent element, they should not be excessive or oppressive”.
(ii) The Rules require that Judicial Committees must take account of the following matters relevant to fixing penalties
• The status of the race.
• The stake payable for a race.
• Any consequential effects upon any person or horses as a result of the breach of the Rules.
• The need to maintain integrity and public confidence in the Harness Racing.
These mandatory matters must always be considered and reflected in any penalty
The Informant has filed submissions on penalty. At no stage in his submissions has he referred to these mandatory features. This was a QUALIFYING TRIAL, not a totalisator race, not a stake bearing race. The Informant’s Counsel has failed to address this issue.
The race that is subject to this matter is a qualifying trial before a race meeting has commenced. There were no stakes, there was no issue of the status of the race and there were no consequential effects upon any third party or horse as a result of the breach of the Rules. No disqualification that has resulted in consequences to third parties and horses applies in this case. This is the lowest level of breach.
It is noteworthy that the Informant’s Counsel has provided no cases which relate to a trial as distinct from a totalisator race or a race bearing stakes. There is a huge distinction between a trial and a race day breach of this Rule which is subject to stakes and most importantly, betting by the general public. The Informant has provided no cases which relate to a breach of this Rule in respect of a trial. This is an important distinguishing feature. None of the cases that the Informant refers to relate to trials. They all relate to breaches of the Rule in the context of a totalisator race and a stake bearing race and in some cases status races.
Accordingly, a Judicial Control Authority Committee must consider the status of the race; here it is a trial, non-totalisator. It must consider the stakes payable for racing; here there are no stakes. Any consequential effects upon any person or horses as a result of the breach of the Rules; there are no changes to placings by virtue of disqualification and changes in stakes, no third party is affected. Because it was a non-totalisator race the need to maintain the integrity and public confidence in harness racing needs to be also considered.
3.6 In respect to previous Decisions, Mr Dollimore submitted as follows:
(a) The facts of HRNZ v K were not similar to the present case.
(b) In the Decision HRNZ v D the only similarity was that the subject drug was Phenylbutazone. He submitted that the facts in that case were far more serious than the position as far a Mr MacKenzie was concerned and he noted that in that case Mr Carmichael submitted that a fine was appropriate. Mr Dollimore referred to a paragraph in that Decision where the Chairman said:
“The Committee has also given due weight to the status and stake of the race in which R finished in third place. We have also given considerable thought to the need to maintain integrity and public confidence in Harness Racing as well as the need for consistency in decision making.” A fine of $1,800.00 was imposed.
(c) Mr Dollimore referred to a Decision of H although we were not provided with a copy of that Decision.
(d) Mr Dollimore then referred to the Decision of HRNZ v P. He submitted that the aggravating features in that case were far more serious than in the present case in that it involved a horse winning a race and that there was a high degree of negligence by the Defendant in that case. He also referred to a notice being given by the Chief Stipendiary Steward Mr George in relation to drug testing and the fact that the RIU would be seeking increased penalties for “any person charged for positive swabs”. Mr Dollimore noted that that notice was issued after the breach by Mr P and he also said that the notice was given after the breach by Mr MacKenzie.
In respect to that Decision he referred to a paragraph from the Decision which stated:
“A further significant issue is that persons investing on the race were unaware that one horse in the race was obtaining an advantage through competing when having been treated with a prohibited substance. The integrity of Harness Racing can legitimately be questioned in these circumstances. The penalty we impose has to reflect this fact. The Defendant’s carelessness needs to be denounced and he must be held accountable”.
That aggravating feature does not apply to Mr MacKenzie because it was a trial.
3.7 Mr Dollimore submitted that a fine in the region of $300.00 to $450.00 was appropriate.
3.8 In respect to costs, Mr Dollimore submitted that costs were strongly opposed in this case. He again referred to the procedure involved in firstly the initial Hearing and then the subsequent two Hearings. He suggested that the reasons for what he perceived to be all of the procedural problems and all of the delays were caused solely by the Informant.
He referred the Committee to a High Court Decision of CD Allen v NZ Police in 1998. In that Decision Mr Justice Giles stated as follows:
(a) But it cannot be right to place the onus on the defence to seek an adjournment to enable the prosecutor to discharge his/her duty; neither can it be right to require a defendant to proceed to trial with the obvious risks of so doing when disclosure has been sought and refused. If, upon a timely request the prosecution elects not to respond, then, in my view, there are fatal consequences for the prosecutor since, in most cases, a ground for dismissal for abuse of process or prejudice to the process of a fair trial will have been per se established. The abuse lies in deliberate failure/refusal to supply; the prejudice lies in denial of the ability to assess the history and reliability of the device in order to determine whether there is a defence point open to be taken. I do not see the issue as one of discipline; rather one of fairness.
(b)
(i) If, at the date of trial, the prosecution has failed to comply with a legitimate defence request for pre-trial discovery and the prosecutor seeks an adjournment in order to comply and has an acceptable explanation for the default, it will be open to the Judge to grant that application provided there are no other implications which militate against that course (e.g. s.25 NZ Bill of Rights Act 1990).
(ii) If, at the date of trial, the prosecution has failed to comply with a legitimate defence request for pre-trial discovery, and, if the prosecutor has no satisfactory explanation for the failure to comply, the Judge will be entitled to dismiss the information for abuse of process.
(iii) If the prosecutor proceeds to a hearing and the defence establishes a failure to comply with a proper request for relevant pre-trial discovery, the defence will be entitled to a dismissal for abuse of process.
3.9 Mr Dollimore submitted that this was a routine, straightforward matter. At the substantive Hearing essentially a pre-prepared Statement of Facts was read by Mr Carmichael. The only witness called was Mr Carmichael, the Racecourse Inspector and it was a half day Haring. The only costs that should be ordered are JCA costs that relate to the substantive Hearing which was a half day Hearing on a race day. It is not for the Informant to seek costs.
3.10 He further submitted that the Informant’s costs are outrageous and are challenged. It is respectfully submitted there was no jurisdiction to make a costs order as submitted by Mr Branch. Mr Branch refers to the High Court Rules which in Counsel’s submission have no application to this Hearing.
3.11 He also submitted the actions and the procedures followed by the Informant are relevant when determining costs. The only costs that should be awarded relate to the JCA costs. Accordingly, any costs application by the Informant is strongly opposed.
4. Reasons for Penalty
4.1 In arriving at penalty this Committee has found that this has been a charge under the “Drug Negligence Rule”. This indeed was always the Informant’s position.
4.2 The Committee does not question Mr MacKenzie’s integrity and as a Trainer of some 30 years experience, there is clearly embarrassment for him in having a “drugs charge” albeit a drug negligence charge proven against him.
4.3 There was never any suggestion of deliberate administration even though Mr Dollimore referred to this extensively at the Hearing and in his submissions and the facts were not there to support a charge of deliberate administration. The facts are however that AVERILS QUEST returned a positive test to Phenylbutazone following a qualifying trial and as the Trainer and person in charge of AVERILS QUEST at all relevant times; Mr MacKenzie was in breach of Rule 1004.
4.4 Rule 1004(7) provides for the following penalties:
(a) A fine not exceeding $20,000.00 and/or the person to be disqualified or suspended from holding or obtaining a license for any specific period not exceeding five years.
4.5 The Integrity of Racing is paramount and all participants in the Racing Industry need to always be aware of this. An industry that is reliant upon the gambling dollar needs to always uphold its integrity to retain the Public’s confidence.
4.6 Regardless of how they got there the existence of drugs in a horse in a race attacks the very core of this integrity.
4.7 Mr Dollimore has in his submissions told us that we should take the status of the race into account, i.e. that it was a qualifying trial rather than an actual race. We have done this. He further tells us in his submissions that there are no consequential effects upon any person or horses as a result of the breach of the Rules and that no third party is affected. We totally disagree with that submission. There is in our view a need for a level playing field in all areas of racing, including qualifying trials. Horses running in qualifying trials need to be drug free just as they would be in races.
4.8 This Committee is well aware of the sentencing principles set out in previous cases in NZTR v P and NZTR v C. A penalty for deliberate administration will obviously be greater than that imposed in the case of negligence and indeed there are degrees of negligence. Penalties imposed for negligence need to be of sufficient level to make other trainers look at their operations and take all proper steps to ensure that a negligent administration does not occur.
4.9 In arriving at penalty we have reviewed the prior Decisions submitted to us by both Mr Branch and Mr Dollimore. We believe that (notwithstanding the submissions by Mr Dollimore) that the Decision in HRNZ v K is very relevant. In that case Mr K was charged under the Drug Negligence Rules and he, like Mr MacKenzie, defended the charge. In that case when he was presented with the Summary of Facts, Mr K accepted the facts and thereby avoided the necessity for the Informant to call witnesses or to have an extended Hearing. That was not the situation in this case. Mr K was fine the sum of $4,000.00.
4.10 In HRNZ v D, as we have previously said, this involved the same drug as in the present case. Mr D admitted the charge which was one under the Drug Negligence Rule and was fined the sum of $1,800.00.
4.11 In HRNZ v P the drug was Clenbuterol and that charge was admitted and the Committee imposed a fine of $3,000.00.
4.12 In the end result Mr MacKenzie acknowledged in the Hearing the presence of Phenylbutazone on his property although many months prior to AVERILS QUEST’S qualifying trial. He told of the strict security procedures that he took at his stables but having said that AVERILS QUEST did return a positive test to Phenylbutazone. This was notwithstanding the precautions that Mr MacKenzie tells us that he had taken and also his excellent record.
4.13 In arriving at penalty we would stress that Mr McKenzie is not being penalised for defending the charge (every person has the right to defend any charge) but he cannot be given credit for defending a charge where there has been an obvious breach of the provisions of Rule 1004.
4.14 There have been a range of fines imposed in prior Decisions referred to us and in other Decisions under the Drug Negligence Rule that we are aware of. Mr Branch has asked for a fine of $4,000.00 which was the same as the fine imposed in HRNZ v K. We believe that Mr McKenzie’s negligence was less than that of Mr K and therefore such level of fine is not appropriate. Mr Dollimore has on the other hand suggested a fine of $300.00 to $450.00. We think that is totally inadequate. Mr McKenzie has provided two character references to us and we have taken his record into account. We record, however, that at no stage has he acknowledged what is to us a clear breach of Rule 1004. In assessing penalty therefore we believe a fine of $2,000.00 is appropriate.
5. Reasons for Costs
5.1 Mr Branch has submitted to us that this was a clear breach of Rule 1004 and that Mr MacKenzie and his Counsel have unnecessarily delayed the proceedings to the extent that it involved several teleconferences and two substantive Hearings. He seeks an order for 80% of the actual costs that have been charged to the RIU.
5.2 Mr Dollimore for his part places all the blame for the procedural difficulties (as he saw them) and the delays on the Informant. He tells us among other things that “the Informant sought a ruling from the Judicial Control Authority based on the doctrine of estoppel. This was an application made by Mr Branch for the first time. It was not a joint application and required a Hearing at the Cambridge Raceway.”
5.3 We not only totally disagree with that submission but in fact it is our view that the delays were caused by Mr MacKenzie and his Counsel in not cooperating in what should have been a relatively straight forward Hearing. The October Hearing arose from a teleconference between Counsel for both parties and the Committee and arose from Mr Dollimore’s request for not only further disclosure but also to question the evidential basis on which the Informant was proceeding. It transpired that Mr Dollimore wanted, among other things, to have a rehearing of the original Hearing on the 18th of March 2011 at which AVERILS QUEST was disqualified from the qualifying trial. This was despite the fact that Mr McKenzie at the time accepted that his horse had a positive test and he consented to it being disqualified from the Trial. Mr Branch raised the doctrine of issue estoppel and Abuse of Process at the October Hearing and made submissions in support of that. The Committee quite clearly found that there was issue estoppel and that to reopen and rehear the charge dealt with on the 18th of March 2011 would be an Abuse of Process.
5.4 There have been a myriad of submissions made by Mr Dollimore on behalf of his Client at the October Hearing, the December Hearing and in the submissions as to penalty and costs. There has however been very little (if any) evidence put forward on behalf of Mr MacKenzie.
5.5 We have referred to the Decision of HRNZ v K in which Mr K accepted the Statement of Facts once presented to him. Mr MacKenzie did not do so when clearly his horse returned a positive test and he was the Trainer and person in charge of that horse at all relevant times. The responsibility for the elongated process and the two Hearings, in our view, lies with Mr MacKenzie and any award of costs should reflect this.
Mr Dollimore has in his submissions made reference to this Committee being different to that on the 18th March 2011. The composition of the Committee had to change because of the unfortunate passing of Mr Rowe. The power to appoint Judicial Committees is given to the Judicial Control Authority pursuant to Section 39 of the Racing Act 2003. Clause 16 of Schedule 3 of that Act also authorises the Chairperson or other member of the Judicial Control Authority to replace a member of the Judicial Committee. This was a separate hearing into the charge against Mr McKenzie and accordingly a new Committee was appointed. It is also relevant to note that any reference to the membership of the Committee was aft
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6. Decision as to Penalty and Costs
6.1 For the reasons set out above, this Committee makes the following Orders:
(a) That Mr MacKenzie is to pay a fine in the sum of $2,000.00.
(b) That Mr MacKenzie pays costs to the Racing Integrity Unit in the amount of $4,704.89.
(c) That Mr MacKenzie pays costs to the Judicial Control Authority in the amount of $2,229.13.
Dated this 10th day of April 2012.
BJ Scott AJ Dooley
Chairman Committee Member
hearing_type: Non-race day
Rules: 1004(1),1004(2)
Informant: Mr TR Carmichael - on behalf of HRNZ
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