Non Raceday Inquiry RIU v A J Pyers – Decision of Judicial Committee as to Penalty and Costs dated 19 June 2013

hearingid: 080a2409fd137bee7fa2f3264963cb3c

informantnumber: A2852

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decisiondate: 24/06/2013

hearing_title: Non Raceday Inquiry RIU v A J Pyers - Decision of Judicial Committee as to Penalty and Costs dated 19 June 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE JUDICIAL CONTROL AUTHORITY

AND IN THE MATTER of the NZ Rules of Harness Racing

BETWEEN: THE RACING INTEGRITY UNIT ON BEHALF OF HARNESS RACING NEW ZEALAND - (Mr R Carmichael – Chief Race Course Inspector appearing)

Informant

AND MR ALLEN JOHN PYERS – LICENCED TO TRAIN AND OPEN HORSEMAN

Respondent

Information No: A2852

Judicial Committee: BJ Scott, Chairman - JN Holloway, Committee Member

Present: Mr R Carmichael – Chief Race Course Inspector – By Written Submissions

Mr AJ Pyers – Respondent – By Written Submissions

Mr AJ Ryan – Counsel for Mr Pyers – By Written Submissions

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY AND COSTS:

1 Introduction:

1.1 At the conclusion of our substantive decision in this matter we requested that the parties make written submissions as to penalty and costs. This was on the basis that the Informant’s submissions were to be presented first, followed by the Defendants.

1.2 The written submissions have now been received from each party.

2 Submissions by Mr Carmichael:

2.1 Mr Carmichael referred to the penalty provisions contained in Rule 1003(1). That Rule was set out in full in our substantive decision.

2.2 Mr Carmichael then referred to the reported case of NZTR and T C (2006) where it was stated:

“Most cases of misconduct involving licensed persons were unpremeditated, they were a direct reaction to an action they felt aggrieved about, often including language of an obscene or offensive nature, and all is usually as a result of race day pressure”.

2.3 Mr Carmichael submitted that the rationale of the Misconduct Rule is quite clear in that there is a high expectation that license holders will conduct themselves in a professional and responsible manner, particularly when in public situations.

2.4 Mr Carmichael’s further submission was that there were two quite separate incidents of misconduct committed by Mr Pyers (indeed there were two separate charges) and he submitted that neither matter fell within the general categorisation set out above.

2.5 Mr Carmichael then referred the Committee to a previous decision in HRNZ v McG. In that case a $500.00 fine was imposed for misconduct on race night and he said that the Committee considered a matter of numbers in mitigation when fixing the penalty including the early guilty plea and Mr McG’s spontaneous reaction on the night.

2.6 Mr Carmichael’s further submission was that the circumstances of this particular offence were rather more serious than they were in McG or in NZTR v C in that in addition to the words being obscene and offensive there was the further aggravating feature involving Mr Pyers use of the whip towards Mr Aylward.

2.7 Mr Carmichael also pointed out to the Committee that the words directed to Mr Aylward were said in a loud voice in close proximity to others including two women who gave evidence before the Committee.

2.8 Mr Carmichael then submitted an extract from the decision in NZTR v C as follows:

“Had it been before a public arena it would have been more serious and there would have been a very strong submission that it was appropriate to disqualify the Defendant”.

2.9 Mr Carmichael’s submission as to penalty was that in fixing penalty the Committee should bear in mind the starting point penalty in the JCA Penalty Guidelines which was a fine of $750.00 or a period of disqualification for up to six months.

3. Submissions by Mr Ryan:

3.1 Mr Ryan in his submissions stated that Mr Pyers cooperated fully with Mr Carmichael in relation to the complaint of misconduct at the Morrinsville workout. Mr Ryan also made submissions about the service of the Information.

3.2 Mr Ryan also made submissions as to the fact that Mr Pyers was no longer able to train on the Morrinsville track as a result of action taken by the Morrinsville Club Committee and he submitted that that is a de-facto suspension.

3.3 Mr Ryan also made submissions as to the cooperation of Mr Pyers throughout the investigation and the cooperation of Mr Pyers and his Counsel in respect to the Hearing.

3.4 Mr Ryan also referred the Committee to the recent decision in RIU v M. He advised the Committee that there were originally 33 Informations laid but that the RIU agreed to accept guilty pleas on 3 clearly representative charges and fines of $350.00 were imposed on each of those charges. He pointed out that the RIU in that case submitted that a fine of $200.00 was appropriate on each of those charges.

3.5 Mr Ryan submitted that disqualification was not appropriate.

4. Reasons for Penalty:

4.1 The Committee has considered the submissions of both parties and has also taken into account the findings that it made in its decision.

4.2 Mr Carmichael in his submissions referred us to the general categorization of misconduct as set out in NZTR v C. He tells us that this incident did not fall within that general categorization but we disagree. The evidence tells us that Mr Pyers was being difficult when approached by Messrs Phillips and Teaz but the misconduct arose when he spoke to Mr Aylward. That may have arisen out of the bad blood between Mr Pyers and Mr Aylward but one can hardly say it was premeditated.

4.3 The actions of Mr Pyers arose out of the use of the wrong cart at the workouts. Mr Pyers had been involved in Harness Racing for many years and he would have been well aware that he needed to use the racing cart. His delays in changing carts was nothing short of being ignorant. This has lead him to have the confrontation with Mr Aylward and has resulted in the misconduct.

4.4 This Committee does not condone Mr Pyers’ actions or words in anyway whatsoever and if he had have been as cooperative with the Workout volunteers as Mr Ryan tells us he was with Mr Carmichael then this may never have happened. This was a public display of bad language in front of both males and females and added to that were his actions with the whip.

4.5 We note the extract from NZTR v C submitted by Mr Carmichael and this incident was in the public arena and as far as this Committee is concerned it is more serious.

4.6 We believe, however, that a significant fine will be an appropriate penalty as far as this charge is concerned.

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penalty:

5.1 This Committee imposes a fine of $850.00 on Mr Pyers.

5.2 There are no orders as to costs.

B.J. Scott          J.N. Holloway
Chairman         Committee Member

19 June 2013

hearing_type: Non-race day

Rules: 303(2)

Informant: The Racing Integrity Unit on Behalf of Harness Racing New Zealand - Mr R Carmichael - Chief Race Course Inspector

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PersonPresent: Mr R Carmichael - Chief Race Course Inspector - By Written Submissions, Mr A J Ryan - Counsel for Mr Pyers - By Written Submissions, Mr A J Pyers - Respondent - By Written Submissions

Respondent: Mr A J Pyers - Licensed to Train and Open Horseman

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