Non Raceday Inquiry NZTR v M Yusof 12 October 2009 decision

hearingid: f11d5046dcc6273117e07b0926372fef

informantnumber:

horsename:

hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

newcharge:

plea:

penaltyrequired:

decisiondate: no date provided

hearing_title: Non Raceday Inquiry NZTR v M Yusof 12 October 2009 decision

charge:

facts:

appealdecision:

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

NZTR v MOHD YUSOF

NON RACEDAY JUDICIAL COMMITTEE: Mr M S McKechnie Chairman and Mr T W Castles

PRESENT    Mr John McKenzie, Chief Racecourse Inspector
                       Mr Bryan McKenzie, Racecourse Inspector
                       Mr John Oatham, Senior Stipendiary Steward
                       Mr Mohd Yusof, Licensed Jockey
                       Ms Micah Tawhara, Counsel for Mr Yusof
                       Mr Paul Moroney, Ballymore Stables

DECISION OF JUDICIAL COMMITTEE

TE RAPA 12th October 2009

1. THE CHARGE

1.1 Mr Yusof is charged that on the 23rd July 2009 at the Matamata Racecourse he being required to supply a sample of his urine, this was found to contain the controlled drug methamphetamine. It is alleged that as a result he committed a breach of Rule 528(1) of the Rules of Racing. Persons convicted of a breach of that rule are liable to the penalty or penalties which can be imposed under Rule 1003(1).

NZTR v MOHD YUSOF

NON RACEDAY JUDICIAL COMMITTEE: Mr M S McKechnie Chairman and Mr T W Castles
PRESENT    Mr John McKenzie, Chief Racecourse Inspector
                       Mr Bryan McKenzie, Racecourse Inspector
                       Mr John Oatham, Senior Stipendiary Steward
                       Mr Mohd Yusof, Licensed Jockey
                       Ms Micah Tawhara, Counsel for Mr Yusof
                       Mr Paul Moroney, Ballymore Stables

DECISION OF JUDICIAL COMMITTEE
TE RAPA 12th October 2009

1. THE CHARGE

1.1 Mr Yusof is charged that on the 23rd July 2009 at the Matamata Racecourse he being required to supply a sample of his urine, this was found to contain the controlled drug methamphetamine. It is alleged that as a result he committed a breach of Rule 528(1) of the Rules of Racing. Persons convicted of a breach of that rule are liable to the penalty or penalties which can be imposed under Rule 1003(1).

1.2 Mr Yusof is an apprentice jockey attached to the Ballymore Stables at Matamata. Mr Paul Moroney advised the Committee that he sought to make representations on behalf of the employer who is brother Mr Michael Moroney. That was agreed to.

2. THE HISTORY OF THE PROCEEDING AND THE PLEA MADE TODAY

2.1 Mr Yusof has throughout been represented by Ms Tawhara, barrister of Hamilton. When the proceeding was first called it was made clear that Mr Yusof wished to have the sample further tested. This involved both the testing of the B sample and a request to obtain what was known as “a DNA profile”. As a result there were a series of preliminary decisions or rulings by the Committee on the 10th & 13th August and the 8th September this year.

2.2 The B sample tested positive. The DNA profiling was then undertaken and the results made known in a report submitted by DNA Diagnostics Limited dated the 23rd September. By memorandum dated the 28th September Ms Tawhara provided the Committee with that report. The report indicated that the profiling which had been possible indicated that the sample was consistent with such profile as Mr Yusof had provided. The memorandum of counsel went on to say that Mr Yusof now wished to enter a plea of guilty.

2.3 As a result of the events just described a decision was given on the 1st October scheduling this hearing which has taken place today.

2.4 Ms Tawhara at the commencement of today’s proceedings and in the presence of Mr Yusof formally entered a plea of guilty to the charge.

3. SUMMARY OF FACTS

3.1 Mr John McKenzie provided to the Committee a detailed summary of facts. This was in two (2) parts. The first part had to do with the events around the 23rd July when the drug test took place at Matamata. It also dealt with the service upon Mr Yusof of a ESR Certificate dated the 27th July 2009 and another document of the same date which is known as “A Stand Down Notice”. By this notice Mr Yusof was forbidden under the rules to be riding horses in track work. The second part of the summary of facts had to do with events which took place on and subsequent to the 10th August 2009. This related to the further testing of the urine samples and the profiling which Mr Yusof sought and described above.

3.2 The Committee asked Ms Tawhara if her client took issue with any of the matters in the summary of facts. In particular the Committee drew attention to paragraph 17 & 18. These contain alleged admissions made by Mr Yusof to the Racecourse Inspector Mr Bryan McKenzie on the occasion of the service of the certificate and the stand down notice on the 27th July this year. Ms Tawhara explained that Mr Yusof acknowledged that he had said to Mr McKenzie “this is bullshit”. The other admissions in paragraphs 17 and 18 were denied by Mr Yusof.

3.3 The Committee indicated to counsel and to Mr John McKenzie that it wished to hear from the parties to whether evidence might be appropriate on these disputed elements in the summary of facts. In response Ms Tawhara said that the denial was maintained. Mr John McKenzie for his part indicated that Mr Bryan McKenzie was perfectly willing to give evidence of what had been said. After some reflection the Committee decided that it would not hear evidence on these disputed matters. The most important consideration in this area of the case is that there is now a guilty plea. There is an acknowledgement that some of what is alleged to have been said was in fact said. Whether or not the other comments were made to Mr McKenzie is not of direct relevance to establishing the level of Mr Yusof’s culpability. It is however significant and the Committee notes that this summary of facts has been available to Mr Yusof and his advisors for a considerable period of time. Further the submissions prepared on Mr Yusof’s behalf which were made available in advance of the hearing albeit a little late as a result of Ms Tawhara being unwell make no reference to this subject – that is the disputed conversation said to have occurred on the 27th July. This passage in the decision should be read closely in conjunction with what is said later with reference to the submissions made on behalf of Mr Yusof in as much as those that relate to the conduct of Mr Bryan McKenzie.

4. SUBMISSIONS FOR NZTR

4.1 Mr John McKenzie made comprehensive penalty submissions. The submissions contain a reference in paragraph 18 to allegations against Mr Yusof “...being involved in use and supply of drugs in the Matamata area”. That is not an appropriate submission in the absence of direct evidence. It is however right to acknowledge the obvious point that the use by Mr Yusof of methamphetamine is not now in dispute. He has pleaded guilty to the charge laid by NZTR.

4.2 Mr McKenzie emphasised the seriousness of the offending and set out a most helpful summary of the way drug enforcement has developed over recent years. He made reference to the well known judgment given in 1994 by Mr J W Gendell now His Honour Justice Gendell. That judgment sets out four (4) significant issues which are to be considered in determining the appropriate penalty.

4.3 More recently there have been other cases which NZTR contends are comparable to the present. There is a well known case of Miss C. That involved a protracted defended hearing and a determination of guilt. That case was and perhaps should remain unique. More recently there have been the cases involving the jockeys M and C. Both those involved prompt pleas of guilty. The case involving jockey M was heard on the 8th May this year here at Te Rapa. It involved a licensed jockey based in Matamata who had been tested on the occasion of a race meeting at Matamata on the 22nd April this year. That case must certainly have known to all involved in the training and riding of horses in Matamata. The second case involved jockey C who pleaded guilty promptly and was disqualified for eight (8) months. In the case of jockey M the period of disqualification was nine (9) months.

4.4 Mr McKenzie says that these cases bear comparison with the present but that Mr Yusof’s case is different in as much as he initially pleaded not guilty. Mr McKenzie contends that the testing which Mr Yusof required was bound to fail and that it amounted to an attack upon the professionalism and integrity of those required to undertake the testing and analysis process. Mr McKenzie pointed to the significant costs incurred by NZTR which amount in total to around $2,700.00. He took the Committee through each of these and further reference will be made to that at the conclusion of this decision.

4.5 Mr McKenzie drew attention to the amendment to the rules governing disqualification for serious drug offences. The maximum period of disqualification that can be imposed has been increased from twelve (12) months to five (5) years. That change to the rules took effect earlier this month on the 5th October. The Committee must apply the rules as they were at the time of Mr Yusof’s offending on the 23rd July this year.

5. SUBMISSIONS FOR MR YUSOF

5.1 Ms Tawhara emphasised that Mr Yusof was entitled to further testing of the samples and that by doing so he should not be penalised.

5.2 It was said that in seeking the DNA profile Mr Yusof had acted promptly and that there was no unreasonable delay. Of course it would not have been in Mr Yusof’s interests to delay the process as he has remained subject to the stand down notice since the 27th July.

5.3 Ms Tawhara was critical of NZTR’s costs in having prepared briefs of evidence on the basis of a not guilty hearing. It was her submission that NZTR should have waited until the results of the tests were know before going to the trouble of preparing that material and incurring the costs involved. The Committee does not accept that submission. The not guilty plea having been notified it was incumbent upon NZTR to make full and prompt disclosure. This it did. To have delayed that procedure until after the testing results were known could have involved considerable further delay. Moreover and importantly persons who enter not guilty pleas upon whatever footing are entitled to be made aware of the case against them. If there is a consequential cost at a later stage when a not guilty plea is vacated and a guilty plea substituted the person must meet the consequential costs or at least make some realistic contribution towards them.

5.4 The submissions made for Mr Yusof outlined what are said to be historical situations “regarding his employment and the unfair treatment he has received over time from certain persons in the racing industry...”. That reference appears in paragraph 15.1 of the submissions. The submissions then continue through succeeding paragraphs with suggestions that Mr Yusof has been in some way victimised or given special and unjustified attention by the racing authorities. There is a reference in paragraph 15.2 (second sentence) that can only mean Mr Bryan McKenzie was or might have been involved in some improper or corrupt practice in relation to the care and custody of the urine samples. There is no foundation whatever for any such suggestion and the Committee completely rejects the implication which is implicit in that sentence. Mr Yusof has pleaded guilty. He cannot go behind his own plea. If he says that he has been treated differently from others on other occasions that has no direct relevance to the plea that he has entered today in the face of unanswerable scientific evidence.

5.5 Mr Paul Moroney spoke on Mr Yusof’s behalf. He explained how Mr Yusof came to be involved with the Ballymore Stables in Matamata. As is well known this is a leading stable with considerable success in New Zealand and in Australia. Mr Moroney also made reference to Mr Yusof’s treatment over time and the belief which he entertained that he had been in some way given undue attention. Reference was made to Mr Yusof’s drug testing history. The official record produced by NZTR shows tests at Matamata on the 23rd Jul 2008, Te Rapa on the 3rd October 2008 and Matamata on the 22nd April 2009. Mr Moroney was told by Mr Yusof that he (Mr Yusof) also recalled an occasion at Te Aroha. The implication in all of this was that Mr Yusof was being given more attention than he should have. If the racing authorities had a suspicion that Mr Yusof was using methamphetamine it is now clear that those suspicions were justified. When he was tested on the 23rd July this year – a non-raceday occasion – the test has proved positive.

5.6 Ms Tawhara and Mr Moroney both recognised that a period of disqualification is inevitable. Mr Yusof’s personal circumstances were outlined. He is a man in his early 30’s with three (3) small children. He rents a house in Matamata. His wife is not in employment. He has a number of personal debts.

5.7 Mr Moroney drew attention to Mr Yusof having been stood down since the 27th July and that this has restricted his income. It was further explained that Ballymore Stables has a strict drug policy and as a result of the events which have brought Mr Yusof here today he is no longer employed in that stable. How Mr Yusof is to support himself in the future was not explained but clearly his situation will not be easy. He is a Malaysian by birth in New Zealand on a work permit. The Committee was told that the work permit has expired and that application has been made for its renewal. Its current status is unknown.

6.  REPLY BY NZTR

6.1 It was Mr John McKenzie’s submission that the stand-down period of 27th July should not be taken into account. He emphasised that the time that had elapsed between that date and this had come about essentially because of Mr Yusof’s decision to have the samples tested and to undertake the DNA profiling. When those tests went against Mr Yusof it was submitted he had to accept the consequences of that.

6.2 Mr McKenzie accepted without reservation the policy at Ballymore Stables outlined by Mr Paul Moroney.

6.3 With reference to claims of victimisation Mr McKenzie emphatically denied that NZTR by any of its inspectors had victimised Mr Yusof or discriminated against him by reason of his race, religion or nationality.

7. DISCUSSION

7.1 The M & C decisions are the most helpful. That involving Ms C, as explained earlier, is quite unique and of limited assistance.

7.2 Mr Yusof’s record was produced to the Committee. He has no previous drug offending of any kind. Of concern however is a suspension which was imposed on the 15th December 2008. That had to do with two (2) counts of misconduct involving assault. He was suspended for one (1) month on each charge, the terms to be served concurrently, was fined $1,000.00 and ordered to pay $750.00 towards the costs of the JCA. The Committee was told that the incidents were reported to the police but did not result in criminal prosecutions.

7.3 Persons who promptly plead guilty to serious allegations of wrong doing, whether under the Rules of Racing or under the general criminal law of New Zealand are entitled to a significant discount. Here Mr Yusof has pleaded guilty. This only after the testing and profiling explained above. It might be thought in those circumstances that a plea of guilty was inevitable and really of no great surprise. This is certainly not a case where any significant discount is to be allowed for a guilty plea. Guilty pleas in the face of inevitable conviction count for little.

7.4 The Committee is conscious of the consequences that disqualification will have. Mr Yusof however is a man in his 30’s with responsibilities to a family and he must have been aware of other cases involving drug use by licensed jockeys. The case of Ms C although not to be compared with the present case received an enormous amount of publicity.

7.5 The question of the position since the 27th July has exercised the Committee’s mind. Clearly between that date and this Mr Yusof has been restricted in the employment which has been open to him. On the other hand as Mr McKenzie pointed out the lapse of time between 27th July and today has come about as a result of Mr Yusof exercising legal rights which have not in the end provided him with any defence to the charge. The Committee thinks that some account must be taken of the period between the 27th July and the present but it is not a significant matter in determining the period of disqualification.

7.6 As noted earlier there has been a substantial increase in the maximum term of disqualification that can be imposed for breaches of this kind. All license holders should be aware that in future longer periods of disqualification are likely to be imposed in order to reflect that significant rule change.

8. DECISION

8.1 Having regard to all of the considerations mentioned above and after carefully considering the decision in re M & C it is our view that the proper period of disqualification is nine (9) months. But for the stand down from the 27th July it might have been a little more. It will start today and run for nine (9) calendar months until the 13th of July 2010. Given Mr Yusof’s financial circumstances and the costs award which will follow there will be no fine imposed.

8.2 We now turn to the question of costs. As explained above we do not accept that NZTR have unnecessarily incurred costs. A not guilty plea was in place for a significant period of time and disclosure of all the material held by NZTR was proper. The total figure worked out by Mr McKenzie was $2,706.25. We round that out to $2,500.00 and that sum will be payable to NZTR.

8.3 The JCA have incurred considerable expense. There have been four (4) preliminary hearings before today. To all intents and purposes the hearing today has been a one (1) day hearing. Mr Yusof is not entirely responsible for that as there were some delays in the commencement of the hearing this morning with transport problems. The total costs incurred by JCA are not ordinarily recovered and that is not what is intended here. It is however appropriate that where a case such as the present has taken up a good deal of the time of the members of the JCA and its staff some meaningful contribution should be made towards those costs. In the circumstances that prevail here we fix the costs in favour of the JCA at $1,200.00.

DATED this 15th day of October 2009

_____________________________________
Murray McKechnie
Chairman

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Old Hearing

Rules: 528.1, 1003.1

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: