Non Raceday Inquiry RIU v A Lynch and P Screen – Decision dated 14 March 2016 – Chair, Mr M McKechnie

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decisiondate: 16/03/2016

hearing_title: Non Raceday Inquiry RIU v A Lynch and P Screen - Decision dated 14 March 2016 - Chair, Mr M McKechnie

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of Harness Racing New Zealand

RACING INTEGRITY UNIT

INFORMANT

ALAN LYNCH and PAULETTE SCREEN

DEFENDANTS

Judicial Committee: Mr Murray McKechnie, Chairman & Mr Richard Seabrook, member

Present: Mr Steve Simon, counsel for the Racing Integrity Unit

Mr Neil Grimstone, manager Racing Integrity Unit

Mr Stuart Connolly, counsel for Mr Lynch and Mrs Screen

Mr Alan Lynch

Mrs Paulette Screen

Mr William Screen

Mr Glen Archibald

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

DATED THIS 14th DAY OF MARCH 2016

1. INTRODUCTION

1.1 The proceedings initiated by the Racing Integrity Unit (RIU) against Mr Alan Lynch and Mrs Paulette Screen were to proceed at Alexandra Park Raceway in Auckland on 25th January 2016. A number of developments occurred immediately before that date which necessitated the adjournment of those proceedings. Those circumstances are set out in the ruling of the Non-Raceday Judicial Committee dated the 25th January 2016 and that ruling should be read together with and as part of this decision.

1.2 Today’s hearing was to proceed as a defended hearing in respect of two (2) charges laid against Mr Lynch and one (1) charge laid against Mrs Screen. The charges against Mr Lynch were laid under Rule 1303(1)(f) which is to the following effect:

A person who is disqualified may not during the period of disqualification without the written consent of the Board enter upon the stable area of any property of a licenced person”

1.3 The information against Mrs Screen alleges that on Friday 4th December 2015 at Pukekohe being a licenced person she associated with Alan Lynch a disqualified person for the purpose of care of any horse registered under the Rules of Harness Racing New Zealand being an offence under Rule 1001(1)(zd) and punishable under Rule 1001(2) of the New Zealand Rules of Harness Racing.

2. THE COURSE OF EVENTS TODAY

2.1 Mr Simon counsel for the RIU called two witnesses. The principal witness for the RIU was Mr Neil Grimstone who is the Manager of the Racing Integrity Unit of the RIU. Mr Grimstone gave evidence of visiting Mrs Screen’s racing stables on 17th November last year. He did not on that occasion locate Mr Lynch. He observed a BMW vehicle leaving the property and he followed that vehicle for some distance and was able to identify Mr Lynch as the driver. Mr Grimstone went on to relate that on 25th November last he again visited Mrs Screen’s stables and took a written statement from her. This was produced as an exhibit before the Committee. On 4th December last Mr Grimstone in the company of a colleague Mr Basil Payn again went to the Screen racing stables. This was to make available to Mrs Screen a written copy of the statement which had been taken from her on 25th November and to issue her with an official warning in relation to the disqualified person Mr Lynch being at her stables. Mr Grimstone related and this was supported by Mr Payn that they observed Mrs Screen and Mr Lynch each leading a horse in the area near the stables and that these horses were led into a paddock and that there was then some conversation. During that it was said by Mr Grimstone and by Mr Payn that Mrs Screen had said “this isn’t how it seems”.

2.2 Following Mr Grimstone’s evidence in chief and before cross-examination by Mr Connolly counsel for Mr Lynch and Mrs Screen the Committee asked questions of Mr Grimstone. The answers to those questions established that when Mr Grimstone went to the racing stables on 4th December 2015 that was for the purpose of serving a written copy of the statement obtained on 25th November and to issue an official warning to Mrs Screen. Further Mr Grimstone explained, in answer to questions, that had Mr Lynch not been observed in an area adjacent to the stables on that occasion no charge would have been laid against Mrs Screen and only one (1) charge preferred against Mr Lynch: that with reference to the 17th November last.

2.3 In the circumstances just explained the Committee entered into discussion with both legal counsel and in the presence of Mr Grimstone and Mr Lynch. It was suggested by the Committee that the proceedings had become unnecessarily protracted and if they were to be continued to a conclusion on a not guilty basis all parties would likely be engaged late into the day and possibly into the early evening. Further the Committee indicated to Mr Connolly that a number of the defences which he had notified in his helpful submissions and which had been considered by the Committee were thought, in a preliminary way, to have little prospect of success. These defences had particular reference to whether the two (2) horses seen on 4th December were or were not registered. Mrs Screen had nine (9) horses in her stable at the relevant time three (3) of which were in work and which perforce must have been registered under the Rules of Harness Racing. The Committee expressed the view that it was not a necessary ingredient of the charge faced by Mrs Screen that one or other or both of the horses being led on 4th December were registered. The second matter had to do with the ownership of the stables. It is a first principle of statutory interpretation to consider the purpose for which the rule is enacted. Plainly the relevant rule here is to ensure that disqualified persons are not in or about the stables of those who are conducting legitimate training operations. It was the Committee’s preliminary view, as made known to counsel, that it is immaterial that the physical premises may be in the ownership of some legal entity other than the individual licenced trainer. If it were otherwise trainers could avoid responsibility under this rule by registering their premises in the name of some other party and then indicating that they had no property of their own and that the rule thus had no application. Plainly the rule is framed in a way that is descriptive rather than technical in character.

2.4 Following the discussions spoken of there was a further discussion between the Committee and counsel as to what penalties might be appropriate in the event that Mr Lynch and Mrs Screen were to enter pleas of guilty. The Committee indicated the views which it took and thereafter Mr Connolly met at some length with Mr Lynch, Mrs Screen and also with Mrs Screen’s husband Mr William Screen. There were a number of exchanges between both counsel and the Committee and after some consideration it was made clear that pleas of guilty would be entered by Mr Lynch in respect of both the informations which he faced and by Mrs Screen in relation to the information which she faced and those pleas of guilty are now formally entered into the record.

3. APPROPRIATE PENALTIES

3.1 We deal first with Mr Lynch. He is currently serving a period of four (4) years disqualification having to do with the administration of a prohibited substance to a horse which he was training. The evidence before this Committee establishes that Mr Lynch had a horse which was being agisted at the Screen stables. There is no evidence that Mr Lynch was involved in assisting Mrs Screen in the training of the horses in her stable. He may have led a horse to the paddock as the evidence established on 4th November last but there is no evidence nor is it suggested by Mr Grimstone that Mr Lynch played any active role in assisting Mrs Screen in her training activities. In these circumstances the conduct is at the lower end of the scale and came about in circumstances that are not as we understand them sinister in character. We therefore determine that the period of disqualification in respect of each breach will be the minimum period laid down under the rules. That is for six (6) months. Mr Connolly sought to persuade us that the disqualifications should be concurrent. We are not persuaded to that position but we are prepared to impose the minimum disqualification in each instance: these two periods of six (6) months to run consecutively, the first to take effect immediately at the conclusion of the current period of disqualification which Mr Lynch is serving.

3.2 As explained in the introduction there was a hearing on 25th January which extended over some time but resulted in the final analysis in the adjournment of the proceedings until today. In those circumstances the RIU has incurred significant costs. So too the JCA in assembling the Committee and in meeting the costs of the venue. In the case of Mr Lynch we are mindful that he is currently disqualified and will be for some and that this necessarily impacts upon his earning capacity. In those circumstances we order costs in favour of the RIU of $1,000.00 and costs in favour of the JCA in the sum of $1,000.00.

3.3 We turn to Mrs Screen. As explained earlier we are satisfied that Mr Lynch had no part in assisting Mrs Screen in her training activities. It seems clear from the discussions between Mr Grimstone and Mrs Screen that she did not perhaps fully understand the implications of the rule and that she had been endeavouring to help Mr Lynch with the horse which he had and which required to be agisted. If Mrs Screen had acted post the interview of 25th November 2015 to end any contact with Mr Lynch then, as earlier explained, there would have been a warning issued and no charge would have been preferred. It was the events of 4th December 2015 which has led to the charge against Mrs Screen. The Racing Integrity Unit proposed a fine of $5,000.00. The Committee thinks that in the circumstances outlined a more modest fine is appropriate. We do not believe that this breach by Mrs Screen was done wilfully or for personal gain or benefit. In those circumstances an appropriate fine is $2,500.00. As to the costs of the RIU Mrs Screen is ordered to pay the sum of $3,500.00. As to the costs incurred by the JCA likewise the sum of $3,500.00. Mr Connolly has explained that Mrs Screen’s personal financial position is not strong and that she may have difficulty in meeting those fines and costs orders. There are provisions available under the Rules of Harness Racing New Zealand for licence holders to meet fines and costs orders by periodical payments and both Mr Lynch and Mrs Screen should, if the circumstances are appropriate, make application to Harness Racing New Zealand to set in place a regime for time payment of the fines and or the costs awards in favour of the RIU and the JCA.

4. ISSUE WITH THE SCREEN PROPERTY

4.1 The Committee was today told of something about which it had no prior knowledge. That is not intended as a criticism of any of the parties. The matter of which the Committee is about to speak is not something that was directly placed upon the Committee’s agenda. What we have been told is that on 17th November last when Mr Grimstone visited the Screen property he drove away at speed and this is said to have loosened metal in the driveway. Mr William Screen explained that some time and effort was required to correct the position in the driveway. As a result Mr Screen sent to the Racing Integrity Unit an account of $500.00. Mr Simon, counsel for the RIU, raised this issue with the Committee in order to try and ensure that all outstanding issues between the RIU and Mr & Mrs Screen were settled today. After some discussion Mr Screen gave the Committee a clear and unconditional undertaking that the matter of the driveway will not be taken further and that the account for $500.00 will not be pursued. Mr Screen is to be thanked for that and in the result all of the issues which have occupied this Non-raceday Judicial Committee for several months are now at an end.

DATED this 14th day of March 2016

Murray McKechnie Chairman

Pursuant to Schedule Five of the New Zealand Rules of Harness Racing

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of Harness Racing New Zealand

RACING INTEGRITY UNIT

INFORMANT

ALAN LYNCH and PAULETTE SCREEN

DEFENDANTS

Judicial Committee: Mr Murray McKechnie, Chairman & Mr Richard Seabrook, member

Present: Mr Steve Simon, counsel for the Racing Integrity Unit

Mr Neil Grimstone, manager Racing Integrity Unit

Mr Stuart Connolly, counsel for Mr Lynch and Mrs Screen

Mr Alan Lynch

Mrs Paulette Screen

RULING OF NON-RACEDAY JUDICIAL COMMITTEE

DATED THIS 25 DAY OF JANUARY 2016

1. This is a hearing taking place under the Rules of Racing at Alexandra Park in Auckland. The Racing Integrity Unit has laid informations against Mr Alan Lynch and Mrs Paulette Screen under the New Zealand Rules of Harness Racing.

2. Mr Lynch was served with the informations as long ago as the 4 December 2015 and Mrs Screen later in December.

3. A telephone conference took place on 13 January 2016. At that time Mr Brian Dickey was counsel for the Racing Integrity Unit and also in attendance on behalf of the Racing Integrity Unit was Mr Neil Grimstone the manager of that unit. Today the Racing Integrity Unit is represented by Mr Dickey’s colleague Mr Simon. Also present on the 13 January was Mr Stuart Connolly counsel for Mrs Screen. At that time it was unclear what steps, if any, Mr Lynch would take.

4. On Thursday of last week the 21st January there was a further telephone conference. In the course of that Mr Connolly indicated that Mrs Screen would be defending the charge which she faces. He also advised the Committee that Mrs Screen had suffered an accident which had caused injury to her head and neck and that there was some uncertainty about whether she could be present today.

5. When today’s hearing got underway Mr Lynch was in attendance. Mr Connolly advised the Committee that he had been instructed by Mr Lynch as recently as last evening (24 January 2016). There was no satisfactory explanation as to why Mr Lynch did not instruct legal counsel at a much earlier time. Mr Grimstone told the Committee in answer to its inquiry that Mr Lynch was served on 18 January 2016 with the notice of today’s hearing.

6. On behalf of Mrs Screen a medical certificate has been put forward from the Pukekohe Family Health Care Limited. This is dated 21 January 2016. There is no satisfactory explanation as to why this was not made available to the Committee at an earlier time. The certificate records, inter alia, “she will be unable to attend to any meeting or hearing for next three weeks due to this fracture”. In fact Mrs Screen is here today contrary to what the medical certificate said would be the position. She was questioned by the Committee and indicated that as a result of the medication she has been required to take she has suffered from bouts of diarrhoea and was concerned that she might have an accident during the course of the hearing today if it were to proceed. She told the Committee that she had suffered no stomach problems today the 25 January.

7. The minute of the Committee dated 13 January 2016 directs that both counsel prepare submissions. Mr Simon has prepared submissions for the RIU. Mr Connolly has not prepared submissions. He seeks to explain that by saying that submissions can only be meaningfully put together after it is known what answers are given by Mr Grimstone in respect to certain questions which are to be directed to him in cross examination. The Committee questioned Mr Connolly as to the nature of the defences which might be raised on behalf of Mr Lynch and Mrs Screen. The rule said to be breached is Rule 1303(1)(f) which is as follows:

A person who is disqualified may not during the period of disqualification without the written consent of the Board enter upon the stable area of any property of a licenced person.

It became apparent in the discussion with Mr Connolly that there were a number of defences which might be raised on behalf of his clients. Without intending to be exhaustive in this it would appear that the following issues will require determination:

a. Who is the owner of the property and if Mrs Screen is not the owner of the property does the relevant rule have application.

b. Were the events said to have occurred taking place “upon the stable area” or on some other part of the property not covered by the provisions of Rule 1303(1)(f).

c. Is it necessary to demonstrate that the horses said to have been with Mr Lynch and/or Mrs Screen are registered and if such horses were not registered what if any significance follows from that.

8. Mr Connolly explained that there would be evidence on behalf of Mr Lynch and Mrs Screen, as the Committee understood it, each from the other, from Mr Bill Screen Mrs Paulette Screen’s husband and from an accountant Mr Archibald who apparently acts on behalf of Mr & Mrs Screen. Further it was said that an affidavit would be put forward in evidence from Mr Peter Johnson the former well known jockey. The Committee has a discretion as to the evidence it can receive but necessarily evidence that is tendered by affidavit cannot carry the same weight as evidence that is given in personam because it is perforce not possible to cross examination the deponent who has made the affidavit.

9. It seems to the Committee that a deal of preparation is still required on behalf of Mr Lynch and Mrs Screen. Mr Lynch did not instruct Mr Connolly until we were told “last night”. That is inexcusable. So far as Mrs Screen is concerned it would seem that now Mr Connolly is acting for both parties he needs to take detailed instructions from each. He shall also need to examine the question of whether it is appropriate for both persons charged to be represented by the same counsel. The Committee expresses no opinion as to that but it is an issue that needs to be examined.

10. In the circumstances outlined Mr Connolly seeks an adjournment of the hearing in respect of both Mr Lynch and Mrs Screen. Mr Simon on behalf of the RIU opposes the application for the adjournment. He points to the following:

a. Mr Lynch should have instructed counsel much earlier. That is a perfectly valid submission.

b. That so far as Mrs Screen is concerned she is, notwithstanding the contents of the medical certificate, she is present today and does not appear in any way compromised in her ability to give evidence.

c. Further Mr Simon advises that he has had communication with Mr Connolly last week concerning one at least of the issues which is identified above as a possible ground of defence.

11. It is the Committee’s view that given all that has been heard this morning and the nature of the defences that are likely to be raised an extended hearing may well be required. In addition to the witnesses spoken of it is said that Mr Bill Screen will play a video and arrangements had been made for that to take place today.

12. With considerable reluctance the Committee is prepared to grant the application for an adjournment. That comes about very largely as a result of events that Mr Lynch and to a lesser extent Mrs Screen could have avoided. The RIU is prepared to proceed today and is entirely blameless in relation to the issue of the adjournment. What the Committee is concerned to ensure is that all parties are fully prepared when this does go ahead and that there can be no suggestion that the hearing has taken place without all persons having every opportunity to put their case as completely as they would wish.

13. Mr Connolly will prepare and file written submissions in advance of the next hearing. Insofar as there may be matters that might arise from the cross examination of Mr Grimstone Mr Connolly shall either have to anticipate those or he may wish not to make written submissions on those matters and make oral submissions at the resumed hearing. What the Committee does want to make very clear is that in respect of the legal defences foreshadowed above the Committee requires detailed legal submissions in support of those defences and any others that may be raised on behalf of Mr Lynch and Mrs Screen.

14. Mr Simon indicated that in the event that the application for an adjournment was granted the RIU would seek costs. That is noted and the question of costs is reserved until the conclusion of the substantive hearing. The Committee can indicate in a preliminary manner that there will be a costs award arising from today’s events unless very persuasive submissions to the contrary can be advanced.

15. It is not possible to fix a date for the resumed hearing at this time. It will be necessary to have a further telephone conference to fix a time and place for the resumed hearing. Now that Mr Connolly is acting for both Mr Lynch and Mrs Screen the arrangements for both that telephone conference and the resumed hearing should be somewhat easier. The Committee will arrange with the Registrar of the JCA to set up that telephone conference as soon as possible and unless there are some unforeseen events the hearing will take place here at Alexandra Park as soon as that is possible. Given what has been said earlier in this decision a full day will, in the Committee’s view, be required. Today’s hearing commenced at 10.30a.m. The resumed hearing will likely need to commence somewhat earlier in the day.

DATED this 25 day of January 2016

Murray McKechnie Chairman

Pursuant to Schedule Five of the New Zealand Rules of Harness Racing

ADDENDUM

The attention of counsel is drawn to Clause 31 of Schedule Five of the New Zealand Rules of Harness Racing. Reference should also be had to the judgment of the Supreme Court in Z v The Dental Complaints Assessment Committee [2009] NZLR P1.
 

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