Non Raceday Inquiry RIU v B Morgenrood – Written Decision dated 9 June 2020 – Chair, Mr T Utikere

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decisiondate: 11/06/2020

hearing_title: Non Raceday Inquiry RIU v B Morgenrood - Written Decision dated 9 June 2020 - Chair, Mr T Utikere

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Thoroughbred Racing

BETWEEN -RACING INTEGRITY UNIT (RIU)

Informant

AND--B MORGENROOD

Respondent

Judicial Committee:--Mr T Utikere (Chairman)

Mr N McCutcheon (Member)

Appearances:---Mr C Lange (Counsel for the Informant)

Ms K Williams (from the RIU)

Mr J Oatham (from the RIU)

Mr M Wallace (Counsel for the Respondent)

Hearing:---4 June at Riccarton Racecourse

Date of Oral Decision:-4 June 2020

Date of Written Decision:-9 June 2020

WRITTEN DECISION OF JUDICIAL COMMITTEE DATED 9 JUNE 2020

[1] The Respondent faces three Serious Racing Offences that are outlined in Informations A6428, A6429 and A6430. They allege a breach of Rules 801(1)(s)(i), 801(1)(p) and 801(1)(w) of the New Zealand Rules of Thoroughbred Racing.

[2] There have been a number of Minutes (Minutes of the Judicial Committee Dated 13 March, 17 April and 18 May 2020) along with two teleconferences (held on 12 March and 18 May 2020) and supplementary communication to progress these matters. The Committee is in receipt of the Notice of Appointment, the Authority to Charge from the RIU’s General Manager, Mr M Godber, and the Charge Rules and Penalty Provisions. Due to Covid-19 Pandemic restrictions there have been delays in progressing this which has been understandable in the circumstances.

[3] Counsel had suggested that this matter could be determined on the papers. However, following the receipt of written Penalty Submissions, a teleconference was held and it was directed that given the seriousness of the charges, and the potential penalty options available to the Committee (as identified at Para 3 of Minute of Judicial Committee Dated 18 May 2020), an in person Penalty Hearing would be held at Riccarton on Thursday 4 June 2020.

[4] The specific Charges allege that the Respondent:

Information No A6428

On 21 February 2020 threatened to cause Class A Jockey Miss Tina Comignaghi to fall in Race 4 at the Canterbury Jockey Club meeting at Riccarton on 21 February 2020 in breach of Rule 801(1)(s)(i) of the New Zealand Rules of Thoroughbred Racing.

Information No A6429

Between 11 and 18 February 2020 did an act that caused undue suffering to the horse VIVACE LADY by pulling on its mouth unnecessarily while riding the said horse in track work which resulted in the said horse suffering cuts and abrasions to the inside of its mouth in breach of Rule 801(1)(p) of the New Zealand Rules of Thoroughbred Racing.

Information No A6430

On 18 February 2020 counselled Jockey Brett Murray to commit a Serious Racing Offence by encouraging the said Jockey to ride in a manner that would assist him to cause Jockey Tina Comignaghi to fall in Race 4 at the Canterbury Jockey Club meeting on 21 February 2020 being an offence under Rule 801(1)(w) of the New Zealand Rules of Thoroughbred Racing.

[5] The relevant provisions of Rule 801 state:

“801(1) A person commits a Serious Racing Offence within the meaning of these Rules who:

…

(p) inflicts undue suffering on a horse by any means.

…

(s) either by himself or in conjunction with any other person:

(i) does or permits or suffers to be done any act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of racing.

…(w) counsels, procures or incites a person to commit a Serious Racing Offence.“

[6] Mr Wallace confirmed via an email on 2 April 2020 that Mr Morgenrood entered Guilty pleas to all three charges. Following that, and in response to a Committee direction, counsel were able to file an Agreed Summary of Facts with the JCA (via email on 5 May 2020).

[7] At the in person Hearing on 4 June, Mr Morgenrood was not present, due to his obligations surrounding recent employment he had secured in Southland. This was signalled to the Committee in advance of the Hearing, and Mr Wallace confirmed that the Respondent, and counsel, were content for the Hearing to proceed in his absence. At the Hearing, the Committee issued an Oral Penalty Decision, and indicated a full Written Decision would follow. This Written Decision now fulfills that requirement. In issuing this Decision, we note that there were some particulars placed before the Committee that have been redacted in order to protect personal privacy considerations.

AGREED SUMMARY OF FACTS (ASOF)

[8] The following ASOF was filed with the Judicial Committee:

“1. Mr Morgenrood is a Class A Jockey under the Rules of New Zealand Thoroughbred Racing. He has been licensed in New Zealand for four years after having ridden in South Africa from 1992/93 to 2015/16 previously. He is 42 years old.

2. The first complainant in this matter, 30yo Miss Tina Comignaghi is also a Class A Jockey having been licensed in New Zealand for four years.

3. Miss Comignaghi and Mr Morgenrood were in a relationship from September 2018 until December 2019. The relationship ended on 9 December 2019.

4. Since the relationship ended Mr Morgenrood has regularly left and sent inappropriate messages to Miss Comignaghi.

5. The following are some of the messages left by Mr Morgenrood on Miss Comignaghi’s phone on 20 January 2020. [Content Redacted from the Written Decision by Committee Direction]

6. Via text on 9 February Mr Morgenrood told Miss Comignaghi that “I’m gona fxxx u over big time!”.

7. As a result of the threatening and abusive texts Miss Comignaghi ‘blocked’ Mr Morgenrood from communication on 10 February.

8. These measures however did not prevent Mr Morgenrood from continuing to harass and intimidate Miss Comignaghi.

9. On the 17 February Mr Morgenrood put 1 cent into her bank account with the particulars as “fxxx u”, “2x” and “again”.

10. On Tuesday 18 February the second complainant, Licensed Class A Trainer Mrs Anna Furlong, was advised by her employee, Jockey Brett Murray, that Mr Morgenrood had been pulling unnecessarily on the racehorse VIVACE LADY’s mouth when riding it in trackwork.

11. Mr Morgenrood had also been doing so for several days prior. The horse sustained mouth injuries as a result of Mr Morgenrood’s actions. He did this with the intention of causing VIVACE LADY, if it was to be restrained in a race, to overreact and become unstable as he was aware that Miss Comignaghi was engaged to ride it at the Canterbury JC meeting on 21 February.

12. Mr Murray also advised Ms Furlong that Mr Morgenrood had asked him to push up on his mount ARCTIC WARRIOR drawn 1 in Race 4 which would prevent Miss Comignaghi, VIVACE LADY drawn 2, from crossing, leaving her exposed to Mr Morgenrood who was riding CHORISTER which had drawn 4. Mr Morgenrood would therefore be able to cause interference to Miss Comignaghi.

13. As a result of this information Ms Furlong removed Mr Morgenrood as the trackwork rider on VIVACE LADY.

14. These facts were discovered after an incident at the Canterbury Racing Club meeting at Riccarton on Friday 21 February which caused the Racing Integrity Unit to initiate an investigation. On this day Mr Morgenrood was engaged to ride in Race 4 and Race 5.

15. Two trials were programmed to run before the commencement of the race meeting. Prior to the first trial Mr Morgenrood entered the female jockey’s room to talk to Miss Comignaghi.

16. A heated discussion took place in which Miss Comignaghi told Mr Morgenrood to “drop it, drop it” and to leave the room. Mr Morgenrood replied “the only thing that’s going to drop is you in the race”.

17. Mr Morgenrood repeated this to Miss Comignaghi when she questioned him about what he had said. The interaction was witnessed by another jockey who reported it to Stewards.

18. Mr Morgenrood was interviewed and admitted making the comment to Miss Comignaghi.

19. As a result of his threats and fears for the safety of Miss Comignaghi and any other riders who could be affected, he was ‘stood down’ from riding.

20. Having been stood down by the Chief Steward in charge on that raceday and the concerns that RIU Investigators had with Mr Morgenrood’s behaviour he was taken for a workplace drug test and this screen proved to be negative to any class A, B or C drugs.

21. Full complainant and witness interviews were later conducted which resulted in the detailed Summary of Facts outlined above.

22. The Racing Integrity Unit Vet examined VIVACE LADY on 26 February 2020 and her findings were, ”the mare had a healing wound in the commissure of the mouth on the right side…. This type of wound is consistent with excessive force applied by a bit during exercise, often if a horse is fractious or pulls strongly in work. The above described mare works quietly on a loose rein and has never been reported to pull. This mare has been evaluated by this practice on eight occasions since June 2019…. At no time on these instances did she have wounds present on the commissures of the mouth. ” The history and the healing nature of the wound corroborate that the wound occurred in accordance with facts presented to the Racing Integrity Unit.

23. As a result of the investigation undertaken to date and rider safety concerns Mr Morgenrood has had his Class A Jockey licence suspended by New Zealand Thoroughbred Racing until further notice.

24. When interviewed regarding the additional incidents Mr Morgenrood denied pulling on the VIVACE LADY’s mouth and denied asking Brett Murray to push up on his mount in Race 4 at Riccarton.

25. Mr Morgenrood has an extensive offence history in South Africa between 1993 and 2015 and two minor breaches of the Rules in New Zealand since his licence was granted in 2017.

26. A copy of the RIU licence application report dated 2 May 2017 is annexed to this summary of facts explaining Morgenrood’s racing background.”

[9] It is not the Committee’s intention to detail the full specifics of the ‘Licence Application Report’, except to indicate that it was authoured by Racing Investigator, Mr Andy Cruickshank following his and Mr Oatham’s interview with Mr Morgenrood in April 2017. The Report, which was addressed to the ‘Racing Integrity Committee’ did capture the Respondent’s extensive offence history in South Africa, with the final sentence of the Report stating “It is unlikely that if Mr Morgenrood was granted a Class A Riders Licence that he would abuse the privilege”.

[10] Mr Lange confirmed that Mr Morgenrood was subsequently granted a Class A Riders Licence by Thoroughbred Racing New Zealand even after his significant previous offending in South Africa and other discrepancies in his Licence Application surfaced.

[11] In response to questions from the Committee, Ms Williams confirmed that the messages that were left on Miss Comignaghi’s phone were on six separate occasions over one morning. The Voicemail messages had also been downloaded, and were able to be played to the hearing. That did occur for the Committee to listen to them.

[12] Mr Lange also confirmed that VIVACE LADY had raced in Race 4 at the Canterbury Jockey Club’s Meeting on 21 February and that there were no issues of concerns raised in the Stewards’ Raceday Report. While Ms Furlong had made the decision to remove Mr Morgenrood as the trackwork rider of her horse, she had not informed the RIU of any concerns.

[13] The knowledge that the Respondent had been causing undue suffering to VIVACE LADY on more than one occasion only came to light as a result of the investigation that followed Mr Morgenrood’s stand down on 21 February. This information came to light after interviewing another stable employee (not Mr Murray), which explains why the RIU vet undertook the examination of the horse some five days after it raced.

[14] Mr Wallace had no comments to make regarding the Agreed Summary of Facts.

DECISION

[15] As the Serious Racing Offences had been admitted, the Committee proceeded on the basis that all three charges are deemed to be proved.

PENALTY SUBMISSIONS OF THE RIU

[16] Mr Lange filed written Submissions which reflected the RIU’s following views on Penalty:

1. Mr Morgenrood has admitted a breach of the following rules: Rule 801(1)(p), Rule 801(1)(w) and Rule 801(1)(s)(i) of the New Zealand Rules of Thoroughbred Racing.

2. Each breach is a serious racing offence and the respondent is liable to the following sanctions under rule 804(2):

a. disqualification for any specific period or for life;

b. suspension from holding or obtaining a licence for a period not exceeding 12 months; and

c. a fine not exceeding $50,000

3. Under rule 920(3) the Committee may also make a costs order against the respondent for the whole or any part of the costs of the:

a. Racing Integrity Unit;

b. Judicial Committee.

Approach to sanctions.

4. In RIU v Lawson(RIU v Lawson Appeals Tribunal 13 May 2019 ) the Appeals Tribunal at [25] commented:

Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry/and those who are to deal with the profession. Disciplinary sanctions are designed for some important different purposes, and although guidance can be gained from the criminal jurisdiction, there are broader considerations. The Harness and Thoroughbred racing "industry " is a profession where key participants are required to be licensed in order to practice in various ways within that sphere. Comprehensive rules of practice, behavior, procedure and the like are set down in extensive detail in the Rules which govern the codes and behavior. As with most professions, a careful internal disciplinary and regulatory process is set up. Those who practice within professions (whether law, accountancy, medicine, teaching, real estate, and the like) are subject to sanctions for breaches of standards of conduct or rules designed to protect members of the profession as well as the public. Such sanctions can at the highest end include removal from a profession for serious breaches of professional rules and standards involving dishonest or immoral conduct. Such behavior if unchecked may greatly harm the reputation of the profession and "bring it into disrepute" – that is, the public loses confidence in it.

5. The decision marks a clear shift in the approach in imposing sanctions for a breach of racing rules and correctly brings a disciplinary approach.

6. In the context of disciplinary proceedings, the Supreme Court commented in Z v Complaints Assessment Committee [2009] that punishment was not a purpose of disciplinary proceedings. The Supreme Court developed the principles at several points in its judgement:

a. Elias CJ remarked that punishment was the “responsibility of the criminal justice process” at [70]:

… The professional standards are properly the focus of the disciplinary inquiry. Where a distinct finding that a conviction reflects adversely on fitness is made, the Tribunal cannot exercise its usual powers to fine the dentist. Again, this seems to me to be recognition that punishment is the responsibility of the criminal justice process. What remains are the professional sanctions for public protection: removal from the register, suspension of registration, the requirement to practise only under supervision, and censure. The overlay of professional discipline in this way meets the purpose explained by Lord Devlin in Ziderman v General Dental Council:

The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession. … [I]t would be the duty of the committee, before deciding to inflict the only and draconian penalty which lies within their power, to satisfy themselves that the offence of which the dentist had been convicted was if so grave a character to show that he was unfitted to continue to practice his profession.

b. McGrath J for the majority (Blanchard, Tipping and McGrath JJ), acknowledged that while statutory disciplinary proceedings do not have the purpose of punishing a practitioner, they may have that effect. His Honour remarked at [97]:

… the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure appropriate standards of conduct are maintained in the occupation concerned.

c. Anderson J compared the purpose of disciplinary proceedings with that of a criminal trial and considered that the essential functional purpose of professional disciplinary bodies is different:

[128] ...The purpose of disciplinary proceedings is materially different to that of a criminal trial. It is to ascertain whether a practitioner has met the appropriate standards of conduct in the occupation concerned and what may be required to ensure that, in the public interest, such standards are met in the future. The protection of the public is the central focus.

….

[149] The function of the criminal law is to ascertain if the defendant has committed a crime and if so, to impose criminal consequences. The essential functional purpose of the professional disciplinary bodies are different. As Gresson P pointed out in Re A, Medical Practitioner:

[T]he exercise by the Medical Council of its powers is not by way of punishment, but rather to enforce a high standard of propriety and professional conduct.

[150] In the same case Cleary J, writing for himself and North J, stated:

[W]hen [the Medical Council] becomes concerned with conduct which constitutes an offence, it is not for the purpose of punishing that conduct as an offence against the public, which is the purpose of the criminal law, but because it is conduct which may show that the practitioner concerned is no longer fit to continue to practise the profession.

[151] Lord Diplock pointed out in Ziderman v General Dental Council that the purpose of disciplinary proceedings is to protect the public who may come to a practitioner and to maintain the high standards and good reputation of an honourable profession.

7. The purposes of protection of the public and the maintenance of high professional standards percolate the remarks of the Supreme Court Justices. More specifically, the purpose of disciplinary proceedings can be summarised as:

a. To enforce a high standard of propriety to maintain the high standards and good reputation of a profession; and

b. To protect the public from a specific practitioner or others who might be likeminded to act.

8. When one applies the principles of professional disciplinary proceedings to a disciplinary proceeding in a sport the purpose are to:

a. enforce a high standard of propriety to maintain the high standards and good reputation of a those involved in the sport; and

b. to protect the betting public and others involved in the sport from future breaches by the individual or others who might be likeminded to breach the Rules.

Factual Background

9. Mr Morgenrood has been licensed in New Zealand for four years after having ridden in South Africa from 1992/93 to 2015/16. At the relevant time he held a Class A Jockey licence. He is 42 years old.

10. Mr Morgenrood and Ms Comignaghi were in a relationship from September 2018 until 9 December 2019. Ms Comignaghi also holds a Class A Jockey licence.

11. Following the end of the relationship Mr Morgenrood sent a number of abusive messages to Ms Comignaghi including the messages detailed at paragraph 5 of the summary of facts.

12. On 9 February Mr Morgenrood told Ms Comignaghi via a text message that “I’m gona f*** u over big time!”. Ms Comignaghi ‘blocked’ Mr Morgenrood from communication on 10 February 2020.

13. Ms Comignaghi was engaged to ride VIVACE LADY at the Canterbury JC meeting on 21 February 2020.

14. Mr Morgenrood had been a trackwork rider for VIVACE LADY in February 2020. For several days before 18 February 2020 Mr Morgenrood had been pulling unnecessarily on VIVACE LADY’s mouth when riding it in trackwork. As a result, the horse sustained mouth injuries. Mr Morgenrood’s intention was to cause VIVACE LADY to overreact and become unstable if it was to be restrained by Ms Comignaghi in a race on 21 February 2020

15. For the race on 21 February 2020:

a. ARCTIC WARRIOR to be ridden by Mr Brett Murray has drawn 1.

b. VIVACE LADY to be ridden by Ms Comignaghi had drawn 2.

c. CHORISTER to be ridden by Mr Morgenrood had drawn 4.

16. On 18 February 2020 Mr Morgenrood approached Mr Murray and asked him to push up on his mount ARCTIC WARRIOR to prevent Ms Comignaghi’s mount VIVACE LADY from crossing, leaving her exposed to Mr Morgenrood who was riding CHORISTER. Mr Morgenrood would then be able to cause interference to Ms Comignaghi.

17. Mr Murray informed the trainer, Mrs Furlong, of Mr Morgenrood’s unnecessary pulling on VIVACE LADY mouth and of being approached by Mr Morgenrood as set out above. The trainer removed Mr Morgenrood as the trackwork rider on VIVACE LADY.

18. On 21 February 2020 two trials were programmed to run before the commencement of the race meeting. Prior to the first trial Mr Morgenrood entered the female jockey’s room to talk to Ms Comignaghi. A heated discussion took place in which Ms Comignaghi told Mr Morgenrood to “drop it, drop it” and to leave the room. Mr Morgenrood replied, “the only thing that’s going to drop is you in the race”. The interactions between Mr Morgenrood and Ms Comignaghi were witnessed by another jockey who reported it to Stewards. Mr Morgenrood was interviewed and admitted making the comment to Ms Comignaghi. As a result of his threats and fears for the safety of Ms Comignaghi and any other riders who could be affected, Mr Morgenrood was ‘stood down’ from riding.

19. A RIU veterinarian examined VIVACE LADY on 26 February 2020. Her findings were, “the mare had a healing wound in the commissure of the mouth on the right side…. This type of wound is consistent with excessive force applied by a bit during exercise, often if a horse is fractious or pulls strongly in work. The above described mare works quietly on a loose rein and has never been reported to pull. This mare has been evaluated by this practice on eight occasions since June 2019…. At no time on these instances did she have wounds present on the commissures of the mouth.”

20. The above demonstrate Mr Morgenrood used his privilege as a licence holder:

a. caused unnecessary injuries to a horse;

b. placed a rider at risk if VIVACE LADY was restrained in the race;

c. placed other horses and riders at risk if VIVACE LADY overreacted or become unstable;

d. to encourage another jockey to ride in a manner that would assist him to cause Ms Comignaghi to fall; and

e. threatened to cause Ms Comignaghi to fall in race.

21. These actions are a significant departure of the high standards expected of person who holds a licence. Whatever the reasons Mr Morgenrood perceived was for the breakdown of the personal relationship between him and Ms Comignaghi they had no place when undertaking racing activities.

Sanction

22. The appropriate sanction for the three serious racing offence breaches is a term of disqualification. The issue is the disqualification period.

23. As submitted above the Appeals Tribunal decision in Lawson marks a clear shift in the approach in imposing sanctions. Lawson concerned an appeal by the RIU against penalty. Before the Judicial Committee, Mr Lawson admitted two breaches of betting on another horse in a race in which he was driving, a serious racing offence. The Committee imposed a suspension of his open horseman licence for a period of 18 months, a fine of $8000, and costs of $3500. On appeal, the Tribunal started at three years nine months disqualification for both breaches of the rules, and after mitigating factors imposed a disqualification of 2 years six months.

24. Two decisions that pre-date Lawson are RIU v Waddell and RIU v O’Riley. In Waddell the Committee imposed a six-month disqualification on a charge of improper riding and a 12-month disqualification for a serious racing offence of using threatening language. O’Riley involved the attempted extortion of money from a licenced trainer by threatening to expose the alleged wrongful and unlawful activities of, and associated with, the trainer by reporting her to the RIU and to otherwise impugn the trainer’s reputation in the industry. The Committee adopted a three and a half years disqualification but imposed a three-year disqualification due to a good record. In both decisions the criminal approach to sentencing was adopted and they pre-date the Appeals Tribunal decision Lawson.

25. Mr Morgenrood’s conduct was premeditated and occurred over a sustained period of time following the ending of his relationship with Ms Comignaghi. His actions demonstrate lack of regard for physical welfare of other riders, a lack of regard to the welfare of horses, was intended to compromise the race, and damages the public perception and image of racing

26. In the past decade there has been increased emphasis and focus on welfare of horses. The New Zealand Thoroughbred Racing Horse Welfare Guidelines state “[t]he … training of racehorses should be consistent with good horsemanship and must not compromise their welfare. Any practices whether in stables, training or racing which are inconsistent with legislative requirements must not be tolerated”.

27. The Animal Welfare (Care and Procedures) Regulations 2018 requires that any person in charge of a horse must ensure that equipment used on a horse’s head does not cause a cut or skin abrasion that bleeds or discharges or causes swelling.

28. As set out above Mr Morgenrood for several days pulled unnecessarily on VIVACE LADY’s mouth when riding it in trackwork. As a result, the horse sustained mouth injuries. A healing wound was detected by the veterinarian on 26 February 2020.

29. Horse welfare imposes

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