Non Raceday Inquiry RIU v B Goldsack and R Goldsack – Written Decision dated 2 August 2019 – Chair, Mr N McCutcheon
ID: JCA11296
Decision:
BEFORE A JUDICIAL COMMITTEE
OF THE JCA UNDER THE RACING ACT 2003
IN THE MATTER of the Rules of New Zealand Greyhound Racing Association (Incorporated)
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND Mr Brian Goldsack
Licensed Trainer
Respondent
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND Mr Ray Goldsack
Licensed Handler
Respondent
Information Nos: A7180, A7181
Judicial Committee: Mr N McCutcheon, Chairman – Mr T Utikere, Judicial Member
The Committee was in receipt of written approval from the RIU Manager Mr M Godber for the charges to be preferred.
Appearing: Mr S Irving for the RIU, Mr A Pandey representing Mr B Goldsack
HEARING 23 JULY 2019 AT HATRICK RACEWAY WANGANUI
WRITTEN DECISION OF JUDICIAL COMMITTEE
FACTS
{1} Mr Brian Goldsack, Licensed Owner-Trainer has been charged with an alleged breach of Rules 84, 87.5 and 62.1 of the Greyhound Racing New Zealand Rules of Racing and the Health and Welfare Standards (GRNZ Code of Welfare 2018). It is alleged that on 13 February 2019 being a Licensed Trainer failed to comply with the Health and Welfare Standards (GRNZ Code of Welfare 2018) and failed to provide proper care for a Greyhound under his control.
(Rule No. 87.5 was inadvertently shown on the charge sheet as 86.5. With the approval of all parties the Rule was amended to read 87.5. This was due to the Rule numbers being changed in the latest edition of the GRNZ Rules of Racing. There was no change to the wording of the Rule, only the number).
RULE 84 PROVIDES:
A Licensed Person shall at all times comply with the Welfare Code, in particular, and without limitation, the Licensed Person shall provide proper care and accommodation for the Greyhounds under his/her control and such accommodation shall be subject to the approval of the Association and be open to inspection by Officials or Stewards or Racecourse Investigators at any time.
RULE 87.5 PROVIDES:
The Trainer of a Greyhound is at all times responsible for the welfare and proper care of a Greyhound and shall at all times comply with the Welfare Code. This responsibility cannot be delegated to any other person at any time.
PENALTY PROVISION 63.1 PROVIDES:
Any person found guilty of an offence under these Rules shall be liable to:
a. A fine not exceeding $10,000.00 for any one (1) offence except a luring/baiting Offence under Rule 86; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off
{2} Mr Ray Goldsack Licensed handler has been charged with an alleged breach of Rule 62.1 of the Greyhound Racing New Zealand Rules of Racing. It is alleged that on 13 February 2019, he did a negligent thing in relation to a Greyhound, in that he left WATCH MY BACK unattended with a Barking Muzzle on being detrimental to the care and welfare of the Greyhound he was in charge of.
RULE 62.1 PROVIDES:
Any person (including an Official) commits an offence if he/she: (o) has in relation to a Greyhound or Greyhound racing, done a thing, or omitted to do a thing which is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct.
PENALTY PROVISION 63.1 PROVIDES:
Any person found guilty of an offence under these Rules shall be liable to:
a. A fine not exceeding $10,000 for any one (1) offence except a luring/baiting Offence under Rule 86; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off
{3} As both charges related to the same incident it was the Judicial Committee's decision to hear both charges together.
{4} The RIU called three witnesses viz, Mr G Whiterod the Chief Stipendiary Steward at the time of the alleged incident, Mr M Austin, Stipendiary Steward and Dr. Erin Carver, Veterinary Surgeon on duty at the said race meeting.
{5} Mr Pandey called two witnesses viz, Mrs J Goldsack the mother of Messrs B & R Goldsack and Mr B Goldsack.
{6} Mr Irving tabled photographs taken of the vehicle on 12 February 2019 used by Mr Goldsack to transport the Greyhounds, as exhibit 1 and New Zealand Greyhound Racing Association Incorporated Health and Welfare Standards as exhibit 2 and new MPI Regulations Exhibit 3.
{7} Mr Irving called his first witness Mr G Whiterod. A written evidential statement signed by Mr Whiterod was provided to all parties. Mr Whiterod proceeded to read the statement which contained the following:
{8}
1.-I, Gavin John Whiterod of Levin, was employed by the Racing Integrity Unit (RIU) as the Chief Greyhound Steward.
2.-I have been appointed under the New Zealand Rules of Greyhound Racing (the rules) as a Steward for over 20 years and have been a general Stipendiary Steward for over 33 years.
3.-On Wednesday 13 February I was on duty as the Chairman of Stewards at the Wanganui GRC day meeting at Hatrick Raceway.
4.-Sometime early afternoon, possibly around Race 5 (1.23pm) WGRC Manager Andrew Hansen came into the Stewards Room and informed me that a Greyhound was in a vehicle behind the grandstand in a distressed state.
5.-I immediately requested via radio that the second Steward Mike Austin meet me at the vehicle after the impending race.
6.-Following the Race Mike and I found the vehicle parked in the rear roadway behind the main stand.
7.-There was a fawn dog in the boot of the vehicle.
8.-I recognised the blue vehicle as belonging to Brian Goldsack.
9.-I observed the dog through the windows of the boot.
10.-The dog was distressed and wearing a barking muzzle which I could clearly see was too tight.
11.-The dog was foaming from both sides of its mouth.
12.-The dog's hair also looked semi damp as it had been sweating.
13.-I could also see that there was little or no ventilation into the boot as there was a wooden partition between the boot and the back seat and no windows in the boot.
14.-I immediately instructed Mike to locate Brian's brother Ray Goldsack who was in charge of the Goldsack dogs that day.
15.-I returned to the Stewards Room before Mike and Ray returned to the vehicle.
16.-I now know the dog to be WATCH MY BACK.
17.-The dog was examined by Vet Erin Carver who advised me that WATCH MY BACK was suffering from heat stress and recommended the dog be scratched from Race 15 (4.32pm).
18.-I believe I saw Trainer Brian Goldsack on track earlier in the day.
19.-I spoke to him on track later in the day after the scratching and he told me that it was necessary to keep the dog in the vehicle with a muzzle on because it is a “nutter” or “it nuts off”.
20.-He also commented that Ray was on his own that day with the dogs as he had to go to a medical appointment.
21.-He didn't seem too upset with me that the dog had been scratched.
22.-Race records detail that the Goldsacks had 8 race dogs entered that day, including WATCH MY BACK in the last race.
23.-There were 15 races that day with the first race at 12.14pm and the last race at 4.32pm.
24.-The Goldsacks had their first dog in race 2 at 12.31pm.
25.-Kennelling times for the first 5 races was between 10.14 and 11.14am.
26.-The Goldsacks had four dogs to be kennelled in the first session so would have arrived on course either prior or during that time.
27.-Kennelling times for races 13 – 15 was between 2.46 and 2.51pm but dogs can be and are often kennelled earlier than the scheduled times.
28.-I noted the incident in my Stipendiary Stewards Report for the meeting: WATCH MY BACK was observed by the Stewards to be in the back of a vehicle in an apparent mildy distressed state. The handler was called to the vehicle and the dog was taken to the kennels, examined by the Vet and was declared a late scratching from Race 15 with mild heat stroke and an elevated temperature. An inquiry was opened and adjourned into the matter.
29.-The NZGRA Health & Welfare Standards, updated on 01 August 2018, details at Chapter 4.1: Collars and muzzles must fit comfortably without damaging the skin, causing swelling, or restricting breathing, panting, vomiting or drinking (refer to appendix 1). (Produce Exhibit 2).
30.-Chapter 4.2 details: Only basket muzzles can be used, except when using a muzzle for therapeutic purposes including routine husbandry procedures.
31.-Chapter 4.3 details: A muzzle used for the therapeutic purposes that restricts panting, drinking or vomiting must be used under constant supervision.
32.-The policy also includes Appendix 1: Extract from the Animal Welfare (Care and Procedures) Regulations 2018. Clause 12(1)(d) Muzzles on dogs: the owner of, and every person in charge of, a dog that is muzzled must ensure that the muzzle does not prevent the dog from breathing normally, panting, drinking, or vomiting.
33.-Clause 12 (2)(a) However the muzzle may be used if the muzzle is used under constant supervision to prevent injury to any human or animal during veterinary treatment or handling;
34.-An advisory was gazetted by GRNZ under the heading “New MPI Regulations, (Produce Exhibit 3).
35.-Chapter 6.9 of the NZGRA Health and Welfare Standards details that: Greyhounds must not be left in a vehicle in conditions where the dog is likely to suffer from cold or heat stress.
End of Statement.
{9} In answer to questions from Mr Irving Mr Whiterod said that photographs 1 and 2 of the photographs tabled as Exhibit 1) appeared to be of the same vehicle. Mr Whiterod then produced a barking muzzle and explained how it works when fitted to a dog. He said that the muzzle is fitted around the dog's nose area and secured over the top of the head area. He added that if the top strap is pulled too tightly the nose part of the muzzle shifts up the dog's nose and that that prevents the mouth opening and the dog breathing properly and also prevents the dog from panting and barking. He said that the muzzle on the dog on the day was made of leather material and that the one shown today was very similar to the one fitted on the dog on the day. Mr Whiterod said that when he looked through the window of the vehicle he could see that the muzzle was too tight and that the dog was prevented from panting or barking and was foaming from both sides of the mouth and that the dog was slightly wet and shining in the coat. He added that at the time the boot of the vehicle was not open and that the rear side windows were not able to be opened.
Mr Whiterod confirmed that he had retired from his position on 30 May 2019.
{10} Mr Pandey in cross examination put it to Mr Whiterod that could he confirm that photograph
1) showed that air could pass through the panel to both sides of the vehicle. Mr Whiterod said that that does appear to be correct.
Mr Pandey put to Mr Whiterod that the windows in the front of the vehicle would allow air to pass through to the back and that did he notice that the windows were open. Mr Whiterod said that he did not notice.
Mr Pandey said that if the Defendant said that the windows were down 4 inches in the front of the vehicle that you wouldn't say that that was incorrect. Mr Whiterod replied that he couldn't say that that was incorrect.
Mr Pandey then asked Mr Whiterod if he had discussed this matter with Mr Goldsack before he put the evidence to Mr Godber for a decision as to whether the charge should be approved. Mr Whiterod said that he had certainly spoken to Mr Goldsack and that he had spoken to Mr Ray Goldsack on the day.
Mr Pandey asked Mr Whiterod if he was aware that Mr Goldsack had tried to kennel the dog in the spare kennels at the Raceway prior to the dog having to be put back into the vehicle before Mr Goldsack had to leave the course for a medical appointment and leaving his brother (Ray) in charge.
Mr Whiterod said that he was not aware of that and no one had spoken to him about a request to kennel the dog anywhere on the racecourse.
Mr Pandey asked Mr Whiterod that before he put the evidence to Mr Godber for a decision, did he at any time attempt to get Mr Goldsack to give an explanation as to what the circumstances were to allow him to present the full position to Mr Godber as opposed to just stating that these are the facts, this is the charge, done deal.
Mr Pandey added that the way the Rules are written it makes this a culpable offence to which there is no defence. The decision whether to charge or not is subjective and that Mr Godber is authorised to accept the charge. He added that not everybody who finds themselves in a similar situation is charged otherwise there would be no racing as there would be ongoing litigation. He said that the only way Mr Godber could accurately decide whether the charge was appropriate or another form of sanction such as a warning, or any other action he chose was appropriate, would be if he had all the facts.
Mr Whiterod said that he believed from his recall of the matter, was that Mr Godber was given all the facts. He said the facts are that when he initially spoke to Mr Ray Goldsack and said to him that what had happened was unacceptable or words along the lines, that the dog had been left in the vehicle and had got into the state it was in by the fact that it had a barking muzzle on that was too tight that resulted in it showing signs of becoming overheated and distressed and that he told Mr Ray Goldsack that that was not acceptable. He said Mr Ray Goldsack's response was that the dog just “goes nuts” if it is locked up for too long in a kennel and that it “nuts off” and barks, and that that was his explanation as to why the situation was as it was. He added that that explanation was similar to that of Mr Brian Goldsack when spoken to later. He said that Mr Brian Goldsack did talk to him about the fact that it was not necessary to scratch the dog, as after being examined by the Vet it had improved its condition quite quickly and that it would have been okay to race. Mr Whiterod said that he disagreed that the dog could have raced in its distressed state and that the time between when they found the dog and the race time, it would not have been in the best interests of the welfare of the dog and the punters. He added that the facts presented to Mr Godber were very clearly given by him.
Mr Pandey said that he was not criticising Mr Whiterod's actions or the actions of the Vet as they were appropriate also.
Mr Pandey then said that there were a couple of oddities that happened on the day. He put it to Mr Whiterod that he swabbed 2 dogs that finished second in races 2 and 3 and that both dogs were trained by Mr Goldsack and that that put extra pressure on Ray Goldsack who was there by himself. He asked Mr Whiterod if he had asked Ray if he had checked the dog from when it was put into the vehicle which he believed was around 12.30pm and when the dog was discovered as being distressed around 1.25pm. Mr Whiterod responded by saying that he did not and added that he did not recall Ray making any comment to him that he was under time pressure and that the only thing that he said was that due to the nature of the dog it was required to be muzzled and kept in the vehicle until such time that it was to go to the kennels.
Mr Pandey asked if there were any other vehicles parked in the same area as Mr Goldsack's vehicle. Mr Whiterod said that there were other vehicles parked in the same area, some being officials’ cars, that club staff sometimes park there and that trainers like Mr Goldsack park in the area and that other vehicle that house dogs were also parked there. Mr Whiterod said that he had no problems with where Mr Goldsack's vehicle was parked.
{11} Mr Irving then put to Mr Whiterod that when looking at photograph 1), that in his opinion as a Greyhound Steward that with the rear window shut and with the front windows open would that provide sufficient ventilation. Mr Whiterod said that he could only speculate and guess. He said that if the dog was in the vehicle without a barking muzzle on it was possible that the dog would not have got in the same state as WATCH MY BACK. He added that it is a fact that a large number of trainers arrive in the course and have their dogs in vehicles in such a confined space and they appear to be fine, and that sometimes they will remain in the vehicle for an hour prior to being taken to the kennel area.
Mr Irving said that Mr Pandey had asked if you had asked Mr Ray Goldsack if he had checked on the dog throughout the day. Mr Irving then asked Mr Whiterod what his opinion was of constant supervision. Mr Whiterod said that if we were talking about a situation like this where a dog was in a vehicle for an hour or two and it had a barking muzzle on, constant supervision would be the act of a Trainer or Attendant returning to the vehicle and checking on the dog reasonably regularly. He added it is a well-known fact that the muzzle prevents the dog from barking and hopefully a dog will settle down, but obviously at times this does not happen.
Mr Irving then said to Mr Whiterod that your interpretation of constant supervision could be regular checks as opposed to constant supervision. Mr Whiterod said that he would not expect a Trainer or Attendant to be standing beside a vehicle constantly, but would expect the dog to be checked on periodically to see how they were handling the situation, especially on 13 February when it was a very warm day with a lot going on with dogs being collected and returned to vehicles and trailers parked nearby.
Mr Irving then asked if it was the responsibility of other Trainers to look after the welfare of another Trainer's dogs when left in the back of a vehicle. Mr Whiterod said that it was not their responsibility but that they do tend to involve themselves by occasionally reporting to Stewards if they have concerns about someone else's dog.
{12} Mr Utikere, Committee Member, said to Mr Whiterod that he had said that Mr Hansen had advised him that the Greyhound was in a vehicle. Mr Utikere asked Mr Whiterod how did Mr Hansen become aware of the situation, and that did he observe it himself or did someone else tell him. Mr Whiterod said that he was not sure but Mr Hansen told him that a dog may be distressed in a vehicle, but that no names were mentioned.
Mr Utikere said to Mr Whiterod that he had said the dog was distressed and that apart from it frothing at the mouth, how else did the dog indicate it was distressed. Mr Whiterod said that it was simply foaming from the mouth and that it also appeared to be sweating and that lead him to the view that it was distressed.
Mr Utikere asked Mr Whiterod how commonly were barking muzzles used on course. Mr Whiterod said the use was not a regular occurrence, but every raceday there would be a trainer wanting to kennel a dog with a barking muzzle and added that he could not say with accuracy how many are used on a day as records are not kept.
{13} The next witness for the RIU was Mr M Austin Stipendiary Steward who was on duty at the racemeeting in question. Mr Austin read through his signed written evidential statement which contained the following:
1.-I Michael Ross Austin of Otaki and employed by the Racing Integrity Unit (RIU) as a Stipendiary Steward.
2.-I have been appointed under the New Zealand Rules of Greyhound Racing (the Rules) as a Steward for approximately 12 years.
3.-I Steward approximately 2-3 Greyhound Meetings a week, equating to about 130 Meetings per year.
4.-On Wednesday 13 February 2019 I was the second Steward at the WGRC Meeting at Hatrick Raceway.
5.-Early in the meeting, sometime around Race 5, I was at the boxes before the start of the race when I received radio contact from the Chairman of Stewards Gavin Whiterod.
6.-He requested that I meet him at the rear alleyway of the grandstand after the race as he had received information that there was a Greyhound in distress inside a vehicle.
7.-After the race I walked from the boxes around the southern end of the grandstand.
8.-I met Gavin there at a blue Honda SUV with a fawn dog in the rear boot section.
9.-There was no one with the vehicle and no one in the general proximity of the alleyway.
10.-Upon closer inspection through the rear and side window I could see the dog was showing signs of distress.
11.-It was salivating and attempting to pant but it had a barking muzzle on that was too tight – -not allowing the dog to be able to pant or drink water.
12.-I do not recall seeing a water bowl in the boot but even so the barking muzzle would have prevented the dog from drinking.
13.-It was a pretty warm sunny day and there did not appear to be adequate ventilation in the vehicle.
14.-The vehicle was in direct sun.
15.-There was a wooden partition between the boot and the rear seat that went up to the roof of the vehicle.
16.-The side windows of the rear seat were open slightly, approximately 10cm, the front windows were not open and the boot was closed.
17.-There were no other Greyhounds in the vehicle.
18.-I did not take any photographs of the vehicle or the dog.
19.-Gavin and I both knew it was Brian Goldsack's vehicle.
20.-Gavin asked me to go and find whoever was with the dogs and tell them to take the dog to the on-course Vet immediately.
21.-I saw Ray Goldsack by the Club Office area and spoke to him about the dog's condition.
22.-Ray said that he was by himself today and was on his way to collect the dog and take it down for pre-race kennelling.
23.-I asked Ray who the dog was and he told me it was WATCH MY BACK.
24.-I told Ray that he was to take the barking muzzle off the dog immediately.
25.-He was not very complimentary towards me as he was visibly upset when I asked him to immediately remove the anti-barking muzzle off the dog in the back of their vehicle and take it to the Vet straight away.
26.-I told him this is not the first time that the Stewards have spoken to Mr Goldsack Kennels regarding leaving dogs in hot vehicles in the last couple of months.
27.-Ray responded by saying that he was on his own and was busy with all the dogs he had that day and why am I always picking on them. There were some other comments made towards me however I cannot accurately recall the exact words that he said, however he was attempting to justify why the dog was in the state it was in.
28.-Ray took the dog down to the RIU Raceday Vet at the Kennels who was Erin Carver.
29.-After examining the dog Erin advised that due to the dog's condition it was not fit to race and as a result it should be late-scratched from Race 15.
30.-After I was advised of the late scratching I went to the kennel block and spoke with Erin.
31.-The dog was reassessed later by Erin who cleared it and allowed it to be taken home by Ray.
32.-At a later racemeeting at Wanganui on 27 February 2019 I took a photograph of the Goldsacks' vehicle in the presence of a Wanganui Security Guard who is a regular Guard employed on racedays by the Club. Produce Exhibit 4).
End of Statement
{14} In answer to Mr Irving Mr Austin confirmed that he took photograph 3 which showed that the back partition had been replaced with a standard metal grille, and that photograph 2 shows a wooden partition had been in place the day before the raceday and that photograph 1 confirms that a wooden partition was fitted.
{15} Mr Pandey invited Mr Austin to look at photograph 1 and asked if the partition went to the top of the roof as he had said, and was that absolutely accurate. Mr Austin said that there was obviously a gap and added that on raceday he viewed it from the side only.
Mr Pandey said to Mr Austin that he had said that the side windows were open but that the front windows were closed. When you said that the side windows were closed, were you talking about the back side windows. Mr Austin said no, he was talking about the front side windows and that the two rear side windows were down a fraction.
Mr Pandey asked Mr Austin if he would accept that the windows were down 4 inches. Mr Austin said no.
Mr Pandey then asked Mr Austin why he did not take pictures (on raceday). Mr Austin said that at the time the dog was very distressed and that it did not enter his head to stand there and take photos, as his focus was on the welfare of the dog.
Mr Pandey put it to Mr Austin that it was not the first time that dogs had been left in the Goldsack vehicle and that he Mr Austin had spoken to Mr Ray Goldsack about the matter. Mr Austin said that that was correct.
Mr Pandey then asked why he was not charged on the previous occasions. Mr Austin said that he had spoken to Mr Goldsack on two occasions and that the circumstances were different. He said that he had previously spoken to Brian and Ray Goldsack about leaving dogs in a vehicle in warm weather, and that this situation was much different. He said that he had also had cause to speak to other Trainers from time to time.
Mr Pandey said was it fair to say that on those other occasions, would you have been justified in laying charges. Mr Austin said no he did not believe so.
Mr Pandey said that you have said previously that you had spoken to Trainers including the Goldsacks about dogs that you believe were too hot in a vehicle, but on those occasions you did not believe that a charge would have been warranted. Mr Austin said that that was correct and that it was a different set of circumstances on this occasion.
Mr Pandey said that he agreed so why reference it to Mr Goldsack at this particular point when he was going to be stressed by the circumstances he was about to be involved in, and that it could be seen as being provocative. Mr Austin said that Mr Goldsack did not know why he was approaching him and that when he asked him if he was aware of the situation that he had a dog terribly distressed in a vehicle, the conversation continued along the lines of this is not the first time we have spoken to you about this sort of thing and it is not good enough, and he obviously was not happy with what I had said to him. He said it could have been provocative what he had said, but it was not meant to be. It was meant to be that you need to do something about this type of situation and that it cannot keep happening. He said that Ray Goldsack did agree that the dog was there and he agreed that the barking muzzle was too tight.
Mr Pandey said to Mr Austin that it was not in his report that Mr Goldsack agreed that the barking muzzle was too tight. Mr Austin said no, but you are asking me a question and I am trying to answer it.
Mr Pandey said at that time he (Ray) would not have known that the muzzle was too tight as he had not had a look had he. Mr Austin responded by saying that he had left the dog in the vehicle and he had obviously put the barking muzzle on, and that when he spoke to Mr Goldsack he obviously knew what he was talking about.
Mr Pandey said but Mr Goldsack did not say that he had put the muzzle on too tight. Mr Austin said that he could not say that.
Mr Pandey said that that should be taken out, because if he did say that, he should be charged with very serious offences, as knowingly abusing a dog like that is unforgiveable, and added that he did not want Mr Ray Goldsack's actions taken out of context.
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 06/08/2019
Publish Date: 06/08/2019
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
newcharge:
plea:
penaltyrequired:
decisiondate: 06/08/2019
hearing_title: Non Raceday Inquiry RIU v B Goldsack and R Goldsack - Written Decision dated 2 August 2019 - Chair, Mr N McCutcheon
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE
OF THE JCA UNDER THE RACING ACT 2003
IN THE MATTER of the Rules of New Zealand Greyhound Racing Association (Incorporated)
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND Mr Brian Goldsack
Licensed Trainer
Respondent
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND Mr Ray Goldsack
Licensed Handler
Respondent
Information Nos: A7180, A7181
Judicial Committee: Mr N McCutcheon, Chairman – Mr T Utikere, Judicial Member
The Committee was in receipt of written approval from the RIU Manager Mr M Godber for the charges to be preferred.
Appearing: Mr S Irving for the RIU, Mr A Pandey representing Mr B Goldsack
HEARING 23 JULY 2019 AT HATRICK RACEWAY WANGANUI
WRITTEN DECISION OF JUDICIAL COMMITTEE
FACTS
{1} Mr Brian Goldsack, Licensed Owner-Trainer has been charged with an alleged breach of Rules 84, 87.5 and 62.1 of the Greyhound Racing New Zealand Rules of Racing and the Health and Welfare Standards (GRNZ Code of Welfare 2018). It is alleged that on 13 February 2019 being a Licensed Trainer failed to comply with the Health and Welfare Standards (GRNZ Code of Welfare 2018) and failed to provide proper care for a Greyhound under his control.
(Rule No. 87.5 was inadvertently shown on the charge sheet as 86.5. With the approval of all parties the Rule was amended to read 87.5. This was due to the Rule numbers being changed in the latest edition of the GRNZ Rules of Racing. There was no change to the wording of the Rule, only the number).
RULE 84 PROVIDES:
A Licensed Person shall at all times comply with the Welfare Code, in particular, and without limitation, the Licensed Person shall provide proper care and accommodation for the Greyhounds under his/her control and such accommodation shall be subject to the approval of the Association and be open to inspection by Officials or Stewards or Racecourse Investigators at any time.
RULE 87.5 PROVIDES:
The Trainer of a Greyhound is at all times responsible for the welfare and proper care of a Greyhound and shall at all times comply with the Welfare Code. This responsibility cannot be delegated to any other person at any time.
PENALTY PROVISION 63.1 PROVIDES:
Any person found guilty of an offence under these Rules shall be liable to:
a. A fine not exceeding $10,000.00 for any one (1) offence except a luring/baiting Offence under Rule 86; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off
{2} Mr Ray Goldsack Licensed handler has been charged with an alleged breach of Rule 62.1 of the Greyhound Racing New Zealand Rules of Racing. It is alleged that on 13 February 2019, he did a negligent thing in relation to a Greyhound, in that he left WATCH MY BACK unattended with a Barking Muzzle on being detrimental to the care and welfare of the Greyhound he was in charge of.
RULE 62.1 PROVIDES:
Any person (including an Official) commits an offence if he/she: (o) has in relation to a Greyhound or Greyhound racing, done a thing, or omitted to do a thing which is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct.
PENALTY PROVISION 63.1 PROVIDES:
Any person found guilty of an offence under these Rules shall be liable to:
a. A fine not exceeding $10,000 for any one (1) offence except a luring/baiting Offence under Rule 86; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off
{3} As both charges related to the same incident it was the Judicial Committee's decision to hear both charges together.
{4} The RIU called three witnesses viz, Mr G Whiterod the Chief Stipendiary Steward at the time of the alleged incident, Mr M Austin, Stipendiary Steward and Dr. Erin Carver, Veterinary Surgeon on duty at the said race meeting.
{5} Mr Pandey called two witnesses viz, Mrs J Goldsack the mother of Messrs B & R Goldsack and Mr B Goldsack.
{6} Mr Irving tabled photographs taken of the vehicle on 12 February 2019 used by Mr Goldsack to transport the Greyhounds, as exhibit 1 and New Zealand Greyhound Racing Association Incorporated Health and Welfare Standards as exhibit 2 and new MPI Regulations Exhibit 3.
{7} Mr Irving called his first witness Mr G Whiterod. A written evidential statement signed by Mr Whiterod was provided to all parties. Mr Whiterod proceeded to read the statement which contained the following:
{8}
1.-I, Gavin John Whiterod of Levin, was employed by the Racing Integrity Unit (RIU) as the Chief Greyhound Steward.
2.-I have been appointed under the New Zealand Rules of Greyhound Racing (the rules) as a Steward for over 20 years and have been a general Stipendiary Steward for over 33 years.
3.-On Wednesday 13 February I was on duty as the Chairman of Stewards at the Wanganui GRC day meeting at Hatrick Raceway.
4.-Sometime early afternoon, possibly around Race 5 (1.23pm) WGRC Manager Andrew Hansen came into the Stewards Room and informed me that a Greyhound was in a vehicle behind the grandstand in a distressed state.
5.-I immediately requested via radio that the second Steward Mike Austin meet me at the vehicle after the impending race.
6.-Following the Race Mike and I found the vehicle parked in the rear roadway behind the main stand.
7.-There was a fawn dog in the boot of the vehicle.
8.-I recognised the blue vehicle as belonging to Brian Goldsack.
9.-I observed the dog through the windows of the boot.
10.-The dog was distressed and wearing a barking muzzle which I could clearly see was too tight.
11.-The dog was foaming from both sides of its mouth.
12.-The dog's hair also looked semi damp as it had been sweating.
13.-I could also see that there was little or no ventilation into the boot as there was a wooden partition between the boot and the back seat and no windows in the boot.
14.-I immediately instructed Mike to locate Brian's brother Ray Goldsack who was in charge of the Goldsack dogs that day.
15.-I returned to the Stewards Room before Mike and Ray returned to the vehicle.
16.-I now know the dog to be WATCH MY BACK.
17.-The dog was examined by Vet Erin Carver who advised me that WATCH MY BACK was suffering from heat stress and recommended the dog be scratched from Race 15 (4.32pm).
18.-I believe I saw Trainer Brian Goldsack on track earlier in the day.
19.-I spoke to him on track later in the day after the scratching and he told me that it was necessary to keep the dog in the vehicle with a muzzle on because it is a “nutter” or “it nuts off”.
20.-He also commented that Ray was on his own that day with the dogs as he had to go to a medical appointment.
21.-He didn't seem too upset with me that the dog had been scratched.
22.-Race records detail that the Goldsacks had 8 race dogs entered that day, including WATCH MY BACK in the last race.
23.-There were 15 races that day with the first race at 12.14pm and the last race at 4.32pm.
24.-The Goldsacks had their first dog in race 2 at 12.31pm.
25.-Kennelling times for the first 5 races was between 10.14 and 11.14am.
26.-The Goldsacks had four dogs to be kennelled in the first session so would have arrived on course either prior or during that time.
27.-Kennelling times for races 13 – 15 was between 2.46 and 2.51pm but dogs can be and are often kennelled earlier than the scheduled times.
28.-I noted the incident in my Stipendiary Stewards Report for the meeting: WATCH MY BACK was observed by the Stewards to be in the back of a vehicle in an apparent mildy distressed state. The handler was called to the vehicle and the dog was taken to the kennels, examined by the Vet and was declared a late scratching from Race 15 with mild heat stroke and an elevated temperature. An inquiry was opened and adjourned into the matter.
29.-The NZGRA Health & Welfare Standards, updated on 01 August 2018, details at Chapter 4.1: Collars and muzzles must fit comfortably without damaging the skin, causing swelling, or restricting breathing, panting, vomiting or drinking (refer to appendix 1). (Produce Exhibit 2).
30.-Chapter 4.2 details: Only basket muzzles can be used, except when using a muzzle for therapeutic purposes including routine husbandry procedures.
31.-Chapter 4.3 details: A muzzle used for the therapeutic purposes that restricts panting, drinking or vomiting must be used under constant supervision.
32.-The policy also includes Appendix 1: Extract from the Animal Welfare (Care and Procedures) Regulations 2018. Clause 12(1)(d) Muzzles on dogs: the owner of, and every person in charge of, a dog that is muzzled must ensure that the muzzle does not prevent the dog from breathing normally, panting, drinking, or vomiting.
33.-Clause 12 (2)(a) However the muzzle may be used if the muzzle is used under constant supervision to prevent injury to any human or animal during veterinary treatment or handling;
34.-An advisory was gazetted by GRNZ under the heading “New MPI Regulations, (Produce Exhibit 3).
35.-Chapter 6.9 of the NZGRA Health and Welfare Standards details that: Greyhounds must not be left in a vehicle in conditions where the dog is likely to suffer from cold or heat stress.
End of Statement.
{9} In answer to questions from Mr Irving Mr Whiterod said that photographs 1 and 2 of the photographs tabled as Exhibit 1) appeared to be of the same vehicle. Mr Whiterod then produced a barking muzzle and explained how it works when fitted to a dog. He said that the muzzle is fitted around the dog's nose area and secured over the top of the head area. He added that if the top strap is pulled too tightly the nose part of the muzzle shifts up the dog's nose and that that prevents the mouth opening and the dog breathing properly and also prevents the dog from panting and barking. He said that the muzzle on the dog on the day was made of leather material and that the one shown today was very similar to the one fitted on the dog on the day. Mr Whiterod said that when he looked through the window of the vehicle he could see that the muzzle was too tight and that the dog was prevented from panting or barking and was foaming from both sides of the mouth and that the dog was slightly wet and shining in the coat. He added that at the time the boot of the vehicle was not open and that the rear side windows were not able to be opened.
Mr Whiterod confirmed that he had retired from his position on 30 May 2019.
{10} Mr Pandey in cross examination put it to Mr Whiterod that could he confirm that photograph
1) showed that air could pass through the panel to both sides of the vehicle. Mr Whiterod said that that does appear to be correct.
Mr Pandey put to Mr Whiterod that the windows in the front of the vehicle would allow air to pass through to the back and that did he notice that the windows were open. Mr Whiterod said that he did not notice.
Mr Pandey said that if the Defendant said that the windows were down 4 inches in the front of the vehicle that you wouldn't say that that was incorrect. Mr Whiterod replied that he couldn't say that that was incorrect.
Mr Pandey then asked Mr Whiterod if he had discussed this matter with Mr Goldsack before he put the evidence to Mr Godber for a decision as to whether the charge should be approved. Mr Whiterod said that he had certainly spoken to Mr Goldsack and that he had spoken to Mr Ray Goldsack on the day.
Mr Pandey asked Mr Whiterod if he was aware that Mr Goldsack had tried to kennel the dog in the spare kennels at the Raceway prior to the dog having to be put back into the vehicle before Mr Goldsack had to leave the course for a medical appointment and leaving his brother (Ray) in charge.
Mr Whiterod said that he was not aware of that and no one had spoken to him about a request to kennel the dog anywhere on the racecourse.
Mr Pandey asked Mr Whiterod that before he put the evidence to Mr Godber for a decision, did he at any time attempt to get Mr Goldsack to give an explanation as to what the circumstances were to allow him to present the full position to Mr Godber as opposed to just stating that these are the facts, this is the charge, done deal.
Mr Pandey added that the way the Rules are written it makes this a culpable offence to which there is no defence. The decision whether to charge or not is subjective and that Mr Godber is authorised to accept the charge. He added that not everybody who finds themselves in a similar situation is charged otherwise there would be no racing as there would be ongoing litigation. He said that the only way Mr Godber could accurately decide whether the charge was appropriate or another form of sanction such as a warning, or any other action he chose was appropriate, would be if he had all the facts.
Mr Whiterod said that he believed from his recall of the matter, was that Mr Godber was given all the facts. He said the facts are that when he initially spoke to Mr Ray Goldsack and said to him that what had happened was unacceptable or words along the lines, that the dog had been left in the vehicle and had got into the state it was in by the fact that it had a barking muzzle on that was too tight that resulted in it showing signs of becoming overheated and distressed and that he told Mr Ray Goldsack that that was not acceptable. He said Mr Ray Goldsack's response was that the dog just “goes nuts” if it is locked up for too long in a kennel and that it “nuts off” and barks, and that that was his explanation as to why the situation was as it was. He added that that explanation was similar to that of Mr Brian Goldsack when spoken to later. He said that Mr Brian Goldsack did talk to him about the fact that it was not necessary to scratch the dog, as after being examined by the Vet it had improved its condition quite quickly and that it would have been okay to race. Mr Whiterod said that he disagreed that the dog could have raced in its distressed state and that the time between when they found the dog and the race time, it would not have been in the best interests of the welfare of the dog and the punters. He added that the facts presented to Mr Godber were very clearly given by him.
Mr Pandey said that he was not criticising Mr Whiterod's actions or the actions of the Vet as they were appropriate also.
Mr Pandey then said that there were a couple of oddities that happened on the day. He put it to Mr Whiterod that he swabbed 2 dogs that finished second in races 2 and 3 and that both dogs were trained by Mr Goldsack and that that put extra pressure on Ray Goldsack who was there by himself. He asked Mr Whiterod if he had asked Ray if he had checked the dog from when it was put into the vehicle which he believed was around 12.30pm and when the dog was discovered as being distressed around 1.25pm. Mr Whiterod responded by saying that he did not and added that he did not recall Ray making any comment to him that he was under time pressure and that the only thing that he said was that due to the nature of the dog it was required to be muzzled and kept in the vehicle until such time that it was to go to the kennels.
Mr Pandey asked if there were any other vehicles parked in the same area as Mr Goldsack's vehicle. Mr Whiterod said that there were other vehicles parked in the same area, some being officials’ cars, that club staff sometimes park there and that trainers like Mr Goldsack park in the area and that other vehicle that house dogs were also parked there. Mr Whiterod said that he had no problems with where Mr Goldsack's vehicle was parked.
{11} Mr Irving then put to Mr Whiterod that when looking at photograph 1), that in his opinion as a Greyhound Steward that with the rear window shut and with the front windows open would that provide sufficient ventilation. Mr Whiterod said that he could only speculate and guess. He said that if the dog was in the vehicle without a barking muzzle on it was possible that the dog would not have got in the same state as WATCH MY BACK. He added that it is a fact that a large number of trainers arrive in the course and have their dogs in vehicles in such a confined space and they appear to be fine, and that sometimes they will remain in the vehicle for an hour prior to being taken to the kennel area.
Mr Irving said that Mr Pandey had asked if you had asked Mr Ray Goldsack if he had checked on the dog throughout the day. Mr Irving then asked Mr Whiterod what his opinion was of constant supervision. Mr Whiterod said that if we were talking about a situation like this where a dog was in a vehicle for an hour or two and it had a barking muzzle on, constant supervision would be the act of a Trainer or Attendant returning to the vehicle and checking on the dog reasonably regularly. He added it is a well-known fact that the muzzle prevents the dog from barking and hopefully a dog will settle down, but obviously at times this does not happen.
Mr Irving then said to Mr Whiterod that your interpretation of constant supervision could be regular checks as opposed to constant supervision. Mr Whiterod said that he would not expect a Trainer or Attendant to be standing beside a vehicle constantly, but would expect the dog to be checked on periodically to see how they were handling the situation, especially on 13 February when it was a very warm day with a lot going on with dogs being collected and returned to vehicles and trailers parked nearby.
Mr Irving then asked if it was the responsibility of other Trainers to look after the welfare of another Trainer's dogs when left in the back of a vehicle. Mr Whiterod said that it was not their responsibility but that they do tend to involve themselves by occasionally reporting to Stewards if they have concerns about someone else's dog.
{12} Mr Utikere, Committee Member, said to Mr Whiterod that he had said that Mr Hansen had advised him that the Greyhound was in a vehicle. Mr Utikere asked Mr Whiterod how did Mr Hansen become aware of the situation, and that did he observe it himself or did someone else tell him. Mr Whiterod said that he was not sure but Mr Hansen told him that a dog may be distressed in a vehicle, but that no names were mentioned.
Mr Utikere said to Mr Whiterod that he had said the dog was distressed and that apart from it frothing at the mouth, how else did the dog indicate it was distressed. Mr Whiterod said that it was simply foaming from the mouth and that it also appeared to be sweating and that lead him to the view that it was distressed.
Mr Utikere asked Mr Whiterod how commonly were barking muzzles used on course. Mr Whiterod said the use was not a regular occurrence, but every raceday there would be a trainer wanting to kennel a dog with a barking muzzle and added that he could not say with accuracy how many are used on a day as records are not kept.
{13} The next witness for the RIU was Mr M Austin Stipendiary Steward who was on duty at the racemeeting in question. Mr Austin read through his signed written evidential statement which contained the following:
1.-I Michael Ross Austin of Otaki and employed by the Racing Integrity Unit (RIU) as a Stipendiary Steward.
2.-I have been appointed under the New Zealand Rules of Greyhound Racing (the Rules) as a Steward for approximately 12 years.
3.-I Steward approximately 2-3 Greyhound Meetings a week, equating to about 130 Meetings per year.
4.-On Wednesday 13 February 2019 I was the second Steward at the WGRC Meeting at Hatrick Raceway.
5.-Early in the meeting, sometime around Race 5, I was at the boxes before the start of the race when I received radio contact from the Chairman of Stewards Gavin Whiterod.
6.-He requested that I meet him at the rear alleyway of the grandstand after the race as he had received information that there was a Greyhound in distress inside a vehicle.
7.-After the race I walked from the boxes around the southern end of the grandstand.
8.-I met Gavin there at a blue Honda SUV with a fawn dog in the rear boot section.
9.-There was no one with the vehicle and no one in the general proximity of the alleyway.
10.-Upon closer inspection through the rear and side window I could see the dog was showing signs of distress.
11.-It was salivating and attempting to pant but it had a barking muzzle on that was too tight – -not allowing the dog to be able to pant or drink water.
12.-I do not recall seeing a water bowl in the boot but even so the barking muzzle would have prevented the dog from drinking.
13.-It was a pretty warm sunny day and there did not appear to be adequate ventilation in the vehicle.
14.-The vehicle was in direct sun.
15.-There was a wooden partition between the boot and the rear seat that went up to the roof of the vehicle.
16.-The side windows of the rear seat were open slightly, approximately 10cm, the front windows were not open and the boot was closed.
17.-There were no other Greyhounds in the vehicle.
18.-I did not take any photographs of the vehicle or the dog.
19.-Gavin and I both knew it was Brian Goldsack's vehicle.
20.-Gavin asked me to go and find whoever was with the dogs and tell them to take the dog to the on-course Vet immediately.
21.-I saw Ray Goldsack by the Club Office area and spoke to him about the dog's condition.
22.-Ray said that he was by himself today and was on his way to collect the dog and take it down for pre-race kennelling.
23.-I asked Ray who the dog was and he told me it was WATCH MY BACK.
24.-I told Ray that he was to take the barking muzzle off the dog immediately.
25.-He was not very complimentary towards me as he was visibly upset when I asked him to immediately remove the anti-barking muzzle off the dog in the back of their vehicle and take it to the Vet straight away.
26.-I told him this is not the first time that the Stewards have spoken to Mr Goldsack Kennels regarding leaving dogs in hot vehicles in the last couple of months.
27.-Ray responded by saying that he was on his own and was busy with all the dogs he had that day and why am I always picking on them. There were some other comments made towards me however I cannot accurately recall the exact words that he said, however he was attempting to justify why the dog was in the state it was in.
28.-Ray took the dog down to the RIU Raceday Vet at the Kennels who was Erin Carver.
29.-After examining the dog Erin advised that due to the dog's condition it was not fit to race and as a result it should be late-scratched from Race 15.
30.-After I was advised of the late scratching I went to the kennel block and spoke with Erin.
31.-The dog was reassessed later by Erin who cleared it and allowed it to be taken home by Ray.
32.-At a later racemeeting at Wanganui on 27 February 2019 I took a photograph of the Goldsacks' vehicle in the presence of a Wanganui Security Guard who is a regular Guard employed on racedays by the Club. Produce Exhibit 4).
End of Statement
{14} In answer to Mr Irving Mr Austin confirmed that he took photograph 3 which showed that the back partition had been replaced with a standard metal grille, and that photograph 2 shows a wooden partition had been in place the day before the raceday and that photograph 1 confirms that a wooden partition was fitted.
{15} Mr Pandey invited Mr Austin to look at photograph 1 and asked if the partition went to the top of the roof as he had said, and was that absolutely accurate. Mr Austin said that there was obviously a gap and added that on raceday he viewed it from the side only.
Mr Pandey said to Mr Austin that he had said that the side windows were open but that the front windows were closed. When you said that the side windows were closed, were you talking about the back side windows. Mr Austin said no, he was talking about the front side windows and that the two rear side windows were down a fraction.
Mr Pandey asked Mr Austin if he would accept that the windows were down 4 inches. Mr Austin said no.
Mr Pandey then asked Mr Austin why he did not take pictures (on raceday). Mr Austin said that at the time the dog was very distressed and that it did not enter his head to stand there and take photos, as his focus was on the welfare of the dog.
Mr Pandey put it to Mr Austin that it was not the first time that dogs had been left in the Goldsack vehicle and that he Mr Austin had spoken to Mr Ray Goldsack about the matter. Mr Austin said that that was correct.
Mr Pandey then asked why he was not charged on the previous occasions. Mr Austin said that he had spoken to Mr Goldsack on two occasions and that the circumstances were different. He said that he had previously spoken to Brian and Ray Goldsack about leaving dogs in a vehicle in warm weather, and that this situation was much different. He said that he had also had cause to speak to other Trainers from time to time.
Mr Pandey said was it fair to say that on those other occasions, would you have been justified in laying charges. Mr Austin said no he did not believe so.
Mr Pandey said that you have said previously that you had spoken to Trainers including the Goldsacks about dogs that you believe were too hot in a vehicle, but on those occasions you did not believe that a charge would have been warranted. Mr Austin said that that was correct and that it was a different set of circumstances on this occasion.
Mr Pandey said that he agreed so why reference it to Mr Goldsack at this particular point when he was going to be stressed by the circumstances he was about to be involved in, and that it could be seen as being provocative. Mr Austin said that Mr Goldsack did not know why he was approaching him and that when he asked him if he was aware of the situation that he had a dog terribly distressed in a vehicle, the conversation continued along the lines of this is not the first time we have spoken to you about this sort of thing and it is not good enough, and he obviously was not happy with what I had said to him. He said it could have been provocative what he had said, but it was not meant to be. It was meant to be that you need to do something about this type of situation and that it cannot keep happening. He said that Ray Goldsack did agree that the dog was there and he agreed that the barking muzzle was too tight.
Mr Pandey said to Mr Austin that it was not in his report that Mr Goldsack agreed that the barking muzzle was too tight. Mr Austin said no, but you are asking me a question and I am trying to answer it.
Mr Pandey said at that time he (Ray) would not have known that the muzzle was too tight as he had not had a look had he. Mr Austin responded by saying that he had left the dog in the vehicle and he had obviously put the barking muzzle on, and that when he spoke to Mr Goldsack he obviously knew what he was talking about.
Mr Pandey said but Mr Goldsack did not say that he had put the muzzle on too tight. Mr Austin said that he could not say that.
Mr Pandey said that that should be taken out, because if he did say that, he should be charged with very serious offences, as knowingly abusing a dog like that is unforgiveable, and added that he did not want Mr Ray Goldsack's actions taken out of context.
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